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Justices Fret Over FOIA Evasion but Struggle for Better Test (2)

Nov. 2, 2020, 6:01 PMUpdated: Nov. 2, 2020, 10:10 PM

The U.S. Supreme Court seemed wary Monday of limiting government disclosure requirements, but unsure where to draw the line in a complex clash over Endangered Species Act records.

The case, U.S. Fish and Wildlife Service v. Sierra Club, has big implications for government transparency, in environmental contexts and beyond. It attracted even broader interest as newly confirmed Justice Amy Coney Barrett sat for oral argument for the first time.

Hearing the case remotely, Barrett and her colleagues pressed both sides to explain what legal test the high court should apply when deciding whether draft documents are subject to public disclosure under the Freedom of Information Act. The dispute centers on federal wildlife agencies’ draft opinions that a proposed EPA regulation would harm endangered species.

“I think there’s a concern lurking in this case that executive branch officials might just stamp ‘draft’ on everything and therefore avoid FOIA,” Justice Brett Kavanaugh said.

Kavanaugh was echoing the Sierra Club’s position—backed by other environmentalists, industry groups, and media advocates—that a ruling for the government would allow agencies to skirt disclosure requirements.

But he and other justices stopped short of embracing the group’s views, in light of the government’s contention that the findings at issue were far from being finalized.

“We’re just very, very far from that here,” assistant to the U.S. solicitor general Matthew Guarnieri told the court. “Here, we are in the molten core of the deliberative process privilege where it’s clear from the record that the agencies” didn’t adopt the conclusions from the draft.

The records at issue fall under a FOIA exemption for government documents that are pre-decisional, and part of an agency’s deliberative process, Guarnieri said.

“The justices seemed to be struggling to find a bright line test that would respect the deliberative process privilege without allowing Fish and Wildlife to block virtually all disclosure of biological opinions by labeling them as drafts,” said University of Maryland law professor Robert Percival, who tracks environmental issues at the Supreme Court. “I’m not sure they found one.”

‘Legal Consequences’

The years-long dispute before the Supreme Court started when the Environmental Protection Agency issued a 2011 proposed regulation for cooling water intake structures at power plants. The federal agencies that oversee species impacts—the Fish and Wildlife Service and the National Marine Fisheries Service—drafted opinions that said the proposal was likely to harm threatened and endangered species.

The EPA then revised its proposal, and the wildlife services declared the regulation would cause “no jeopardy” to rare animals and plants. The Sierra Club used FOIA to get internal records from that decision-making process, and the agencies withheld the earlier draft opinions.

The U.S. Court of Appeals for the Ninth Circuit in 2018 ordered the government to turn over the records, and the Supreme Court agreed to review the case this year.

Some of the Sierra Club’s typical legal foes, including the National Association of Home Builders and the American Forest Resource Council, are backing the environmental group in the case, focused on protecting their own access to government documents that steer major regulatory decisions.

Sierra Club lawyer Sanjay Narayan urged the Supreme Court to rule that FOIA requires disclosure of draft documents when they have “appreciable legal consequences.”


In the rulemaking process at issue in the case, the EPA changed its regulation after the wildlife agencies drafted their findings about harm to endangered species, Narayan said. The agencies virtually never put such “jeopardy determinations” in final form, so drafts function as a final decision, he said.

The majority of justices appeared to agree that putting a “draft” label on a document isn’t enough to exempt it from FOIA. But they seemed unsure about the Sierra Club’s proposed test for discerning which records qualify for the FOIA exemption.

“The operative effects test seems sort of tailor-made for the facts here, but it doesn’t seem to be very helpful in most cases,” Chief Justice John Roberts said.

Barrett raised similar concerns about how to apply the “appreciable legal consequences” test, questioning whether the EPA’s decision to revise its proposed regulation was simply the practical, rather than legal, consequence of hearing the wildlife agencies’ initial views.

Justice Elena Kagan likewise said she was uncertain how to judge what happened between the EPA and the wildlife agencies, given federal officials’ declarations that the wildlife agencies’ conclusions really hadn’t been settled by their top officials.

Agencies should have some space for collaboration and back-and-forth in the rulemaking process, Justice Neil Gorsuch said. “Are you at all concerned that a more invasive rule might deter this kind of productive discussion?” he asked.

Narayan agreed but said, in this case, the public is entitled to know the basis of the EPA’s decision so it could analyze whether future actions are consistent with those original conclusions about impacts on endangered species.

‘Third Way’

Outside lawyers who tuned in to Monday’s oral argument had mixed impressions about how the court would rule.

Brett Hartl, government affairs director at the Center for Biological Diversity, said in a statement that the conservative justices “seem way too eager to eliminate checks on the executive branch’s power.” CBD filed an amicus brief supporting the Sierra Club in the case.

Pacific Legal Foundation senior attorney Damien M. Schiff said he expects the justices to find “something of a third way,” by deciding the case narrowly in the government’s favor without setting any hard rules about what types of draft documents are subject to FOIA.

The justices appeared to understand that issuing a broad rule that exempts all “draft” documents “would be pernicious” and create a loophole, Schiff said during a Federalist Society call.

In an interview with Bloomberg Law after the argument, Narayan said he thought the justices on both ends of the ideological spectrum “demonstrated in their questions concern for the accountability values that underlie FOIA.”

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.

The case is U.S. Fish and Wildlife Serv. v. Sierra Club, U.S., No. 19-547, oral argument held 11/2/20.

(Adds Hartl, Schiff comments in last section.)

To contact the reporter on this story: Ellen M. Gilmer in Washington at

To contact the editors responsible for this story: Anna Yukhananov at; Rebecca Baker at