Sierra Club arises from a FOIA request by Sierra Club to the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, the Services) seeking documents related to the Services’ consultation with the U.S. Environmental Protection Agency (EPA) over potential impacts to endangered species resulting from an EPA proposed rule. Throughout the nearly two-year Endangered Species Act (ESA) consultation process, the Services and EPA exchanged emails and draft documents on the proposed rule. In December 2013, the Services concluded in draft biological opinions (BiOps) that EPA’s proposed rule was likely to jeopardize certain protected species, but the Services never sent the draft “jeopardy” BiOps to EPA for the regulatory review provided by the ESA. See 50 C.F.R. § 402.14(g). Instead, the Services and EPA continued consultations until 2014, when the Services issued a joint “no jeopardy” BiOp in response to EPA’s significantly revised rule. After Sierra Club sought to obtain the draft BiOps under FOIA, the Services withheld them pursuant to Exemption 5’s deliberative process privilege, and Sierra Club sued.
Sierra Club argued that the draft jeopardy BiOps represented the Services’ final view on EPA’s then-current version of the proposed rule, and therefore were neither pre-decisional nor deliberative. Sierra Club claimed that EPA’s knowledge of the forthcoming draft “jeopardy” BiOps caused EPA to alter its proposed rule. Therefore, the drafts had the same effect as final BiOps and should be produced under FOIA. Otherwise, as the Supreme Court summed up Sierra Club’s arguments, agencies could stamp all documents as “drafts” and create “secret [agency] law.”
The Supreme Court rejected Sierra Club’s “effects-based test” and upheld the principles of agency deference in establishing a finality test. “To determine whether the privilege applies, we must evaluate not whether the drafts provoked a response from the EPA but whether the Services treated them as final.” The Court reasoned that “many documents short of a draft biological opinion could prompt an agency to alter its rule” and producing all of these documents would “gut the deliberative process privilege.” Moreover, the fact that the draft BiOps were the Services’ last words on EPA’s 2013 version of the rule did not affect the outcome. “What matters . . . is not whether a document is last in line, but whether it communicates a policy on which the agency has settled.” “Sometimes a proposal dies on the vine,”; “documents discussing such dead-end ideas” do not reflect “an agency’s chosen course,” the Court ruled.
Determining finality, the Court explained, should focus on the “legal, not practical, consequences that flow from an agency’s action.” Examining first the text of the governing law, the Court noted that the ESA regulations distinguish between draft and final BiOps and contemplate the possibility of changes to draft BiOps after the review period provided to the action agency. Sierra Club, 141 S. Ct. at 787. Thus, the Court concluded that legal consequences follow the issuance of final BiOps, not drafts.
The Court was, however, careful to limit its ruling, insisting that the term “draft” is not determinative, and that a “functionally final decision” hidden in “draft” form would not be privileged. Documents must be evaluated “in the context of the administrative process which generated them,” the Court asserted, citing back to and quoting NLRB v. Sears, Roebuck & Co. (1975). Applying a “function” over “form” analysis, the Court reasoned that the ESA consultation process had “worked as it should have: The Services and the EPA consulted about how the rule would affect aquatic wildlife until the EPA settled on an approach that would not jeopardize any protected species.” In addition, and despite their “polished” look, the Court noted that the draft BiOps were prepared by lower-level staff, had not been approved by supervisors at either agency, and were never even sent to EPA for review. Thus, the Court concluded that the documents were “best described not as draft biological opinions but as drafts of draft biological opinions.” And a “draft of a draft” is a “far cry” from a final agency decision.
The dissent, written by Justice Breyer with Justice Sotomayor joining, agreed with the Court that drafts of drafts are not final, and that the function of the document within the decision-making process at issue is critical. However, the dissent concluded that “legal consequences flow” from draft BiOps sent to action agencies because the Services typically have no intention of editing the drafts following review by the action agency. Therefore, the draft BiOps limit the action agency’s response options in the same way as final BiOps. Notably, the majority had expressly refrained from ruling on this particular scenario (i.e., whether a draft BiOp sent to the action agency was final) since the draft BiOps here “did not count even as drafts under the regulation.” While the majority remanded to the district court to determine whether any information was segregable, the dissent would have remanded to determine whether the BiOps were actually drafts of drafts, which would be deliberative.
Given the Court’s instruction that the opinion applies to all drafts, not just BiOps, the decision will likely make it more difficult to obtain agency “drafts” under FOIA, and perhaps in the civil litigation context as well. However, the effects may be limited due to required consideration of the document’s function in the administrative process at issue. In the nearly 30 cases citing Sierra Club to date, the opinion has proved useful in clarifying the contours of the deliberative process privilege and then providing arguments for both sides in the fact-intensive inquiry that follows.
