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

ELR Citation: 51 ELR 20036
Nos. 19-547, (U.S., 03/04/2021)

The U.S. Supreme Court reversed, 7-2, a circuit court ruling that draft biological opinions were not exempt from a FOIA request related to FWS' and NMFS' consultations with EPA for a proposed rule regarding cooling water intake structures. An environmental group submitted FOIA requests for the records, and the Services invoked the deliberative process privilege to prevent disclosure of their draft biological opinions analyzing EPA's proposed rule. The group filed suit, and the circuit court held that the draft biological opinions were not privileged because even though they were labeled as drafts, they represented the Services' final opinion regarding the Agency rule. The high court held that the deliberative process privilege protected from disclosure in-house draft biological opinions that were both predecisional and deliberative, even if the drafts reflected the agencies' last views, and thus protected the draft biological opinions at issue here because they reflected a preliminary view, rather than a final decision about the rule. It therefore reversed the circuit court and remanded for further proceedings. Barrett, J., delivered the opinion of the Court, in which Roberts, C.J., and Thomas, Alito, Kagan, Gorsuch, and Kavanaugh, JJ., joined. Breyer, J., filed a dissenting opinion, in which Sotomayor, J., joined.