The Supreme Court in USFWS v. Sierra Club, 2021 WL 816352 (U.S. 2021) evaluated a "draft" determination by the US Fish & Wildlife Service (USFWS) and the National Marine Fisheries Service (collectively, the Services) regarding whether a 2011 proposed rule by the Environmental Protection Agency (EPA) would jeopardize certain species under the Endangered Species Act (ESA). The court held the draft was a document that falls under the "deliberative process privilege" exception to the Freedom of Information Act (FOIA). Writing for the 7-2 majority, Justice Barrett in a conservative opinion explained that courts should not apply an "effects-based" test to determine whether the deliberative process privilege applies, but should instead determine whether the authoring agency treated the determination as final. This decision may make it more difficult for the public to obtain certain federal documents.

In 2011, EPA proposed a rule under the Clean Water Act that would affect the "design and operations of 'cooling water intake structures,' which withdraw large volumes of water from various sources to cool industrial equipment." As required by the ESA, EPA began consulting with the Services to determine whether the proposed rule would jeopardize certain protected species. EPA requested a formal consultation in 2013. The Services prepared a draft biological opinion that concluded the proposed rule, as written, would jeopardize certain species. The draft biological opinion was apparently never sent to the EPA, and instead the agencies continued to consult until a heavily revised EPA rule satisfied a subsequent "no jeopardy" final opinion. Continue reading >