The Supreme Court is taking up the Trump administration’s legal quest to keep certain Endangered Species Act records from the public eye.
The justices agreed Monday to review a petition from two U.S. agencies trying to reverse a court order to release draft documents from a controversial species consultation process. The Freedom of Information Act case could have broad ramifications for agency disclosure in other contexts.
Government lawyers warned in their petition that allowing the order to stand would undermine a FOIA exemption that allows for “candid” communication between agencies during decision-making processes. But the Sierra Club, which filed the underlying case, says FOIA doesn’t allow agencies to shield important records simply by labeling them drafts.
“If an agency makes a decision that alters the course of either another agency’s decision-making or affects the public, it doesn’t get to just stamp that document ‘draft’ or ‘secret’ or ‘for our eyes only’ or anything else,” Sierra Club attorney Sanjay Narayan told Bloomberg Law.
Some legal analysts predict that the court’s decision to take the case means the justices will side with the government.
The dispute stems from the Environmental Protection Agency’s 2011 proposal to change how it regulates power plants’ cooling water intake structures, which can crush or boil fish and other aquatic creatures.
The U.S. Fish and Wildlife Service and the National Marine Fisheries Service advised the agency on how the plan would affect threatened and endangered species. The services crafted draft opinions that said the EPA’s proposal was likely to harm protected species, but they later changed their conclusion and issued a “no jeopardy” finding.
When the Sierra Club used FOIA to get records related to the consultation process, the agencies withheld the draft opinions. After years of litigation, the U.S. Court of Appeals for the Ninth Circuit in 2018 ordered the government to turn over the records.
The Trump administration in October asked the Supreme Court to step in, arguing that the circuit court ignored FOIA Exemption 5, which protects records from an agency’s “deliberative process.” The Sierra Club countered that the documents were labeled drafts but functioned as final opinions.
The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.
Margaret Townsend, a Center for Biological Diversity attorney who focuses on government transparency, said her group will be watching the case closely, as the Supreme Court “has a crucial opportunity to tell agencies they can’t hide science at the expense of our endangered animals and plants.”
Brett Hartl, government affairs director for the center, noted that expanded use of FOIA’s “deliberative process” exemption could allow the EPA and others to block disclosure of critical documents that explain agency decisions.
Lewis and Clark Law School professor Daniel Rohlf said a win for the government at the Supreme Court could help agency leaders overrule their own scientists and other experts.
Narayan, the Sierra Club lawyer, said the group wants to understand the basis for the original determinations from the Fish and Wildlife Service and the National Marine Fisheries Service that the EPA proposal would harm marine life.
Though the Ninth Circuit ruled in the group’s favor on the draft documents, the government still hasn’t turned them over, thanks to the ongoing appeal.
Andrew A. Rosenberg, head of the Center for Science and Democracy at the Union of Concerned Scientists, previously served as the senior career official for the National Marine Fisheries Service. He said he wouldn’t have considered the disputed records to be covered by FOIA’s exemption for deliberative processes.
“This FOIA doesn’t ask them to reveal all those questions about deliberations that led to the agency’s final decision,” he said. The Union of Concerned Scientists filed an amicus brief on the Sierra Club’s side in the Ninth Circuit.
Another FOIA Dispute
Many court watchers said they were surprised the justices agreed to take up the case at all, just a year after considering a separate FOIA exemption involving trade secrets and lowering the bar for agencies to use the provision.
“It is unusual to see essentially back-to-back FOIA cases at the Supreme Court,” Reporters Committee for Freedom of the Press attorney Adam A. Marshall said. “They’ve been fairly few and far between in the last couple decades.”
Pacific Legal Foundation attorney Jonathan Wood said he expects the Supreme Court to reverse the Ninth Circuit.
“I suspect the Sierra Club’s attorneys are feeling nervous this morning,” he said in an email. “The Supreme Court generally takes cases to reverse them, and that’s probably even more true for a ‘dry’ issue like FOIA.”
Mayer Brown attorney Timothy S. Bishop noted that Justice Brett Kavanaugh has rejected calls in unrelated litigation at the U.S. Court of Appeals for the District of Columbia Circuit to force disclosure of an agency draft that “dies on the vine.”
“It doesn’t matter how late in the process the draft is abandoned,” Bishop said. “And here the agencies decided that the draft should not be finalized because further consultation was necessary, and then actually engaged in more consultation before issuing a final opinion.”
However, he noted, the impacts of the court’s ultimate decision could be limited, given the unique circumstances in the case. Plus, Congress has since amended FOIA to narrow the circumstances in which agencies can use the “deliberative process” exemption.
Scrap the Case?
University of Arizona professor Justin Pidot said the Sierra Club might consider settling the case and dropping its pursuit of the documents to avoid an adverse outcome at the Supreme Court.
“There might be good reason to try to abandon a case if you can avoid a bad Supreme Court decision,” Pidot, a former Interior Department official, said.
Vermont Law School professor Patrick Parenteau agreed, saying, “I’d think these days you don’t want to be in the Supreme Court, period.”
Narayan, the Sierra Club lawyer, declined to speculate.
“That,” he said, “falls squarely in the ‘we’re still assessing our options’ category.”
The case is Fish and Wildlife Serv. v. Sierra Club, U.S., No. 19-547, cert. granted 2/24/20