Case No. 19-547 | 9th Cir.
November 2, 2020
Preview by Nick Contarino, Online Editor
The Environmental Protection Agency (“EPA”) submitted a regulation to the Fish and Wildlife Service and National Marine Fisheries Service (“Services”) for the Services’ review under the Endangered Species Act (“ESA”). Brief for Respondent at 1, U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., No. 19-547 (U.S. filed July. 27, 2020). The Services each issued a “jeopardy opinion” in which they found that the regulation violated the ESA’s prohibition on actions likely to jeopardize protected species. Id. at 1, 13. Consequently, this required the EPA to either terminate their regulations, implement an alternative approved by the Services, or seek an exemption. Id. at 1. EPA choose to add further protective measures to its regulation, and these measures were approved by the Services. Id. The Services have refused to disclose the two jeopardy opinions and connected materials. Id. at 2.
To ensure that agencies are accountable to the public, the Freedom of Information Act (“FOIA”) mandates disclosure of “the reasons” that “supply the basis for an agency policy actually adopted.” Id. at 1 (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 152-53 (1975)); 5 U.S.C. § 552. The Sierra Club argues that the jeopardy opinions (and connected materials) are required to be disclosed under FOIA because they “supply the basis for an agency policy actually adopted.” Id. at 27 (throughout their brief the Sierra Club refers to the jeopardy opinions as “jeopardy decisions”). The Services state that the documents are instead “discussion drafts recommending a decision that the Services never made, for reasons they never adopted, addressing a version of the EPA rule that never issued.” Reply Brief for the Petitioners at 3, U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., No. 19-547 (U.S. filed August 26, 2020) (throughout their brief the petitioners refer to the jeopardy opinions as “draft opinions”). The Services argue that the deliberative process privilege was properly invoked regarding said documents, and therefore they are exempt from compelled disclosure under Exemption 5 of FOIA. Id. at 1 (citing § 552(b)(5)).
The court of appeals, based on an in camera review, found that these the jeopardy opinions were “not deliberative.” Brief for Respondent at 18. The Sierra Club states that the Services have not met their burden under FOIA to sustain their claim of privilege. Id. at 23. The Sierra Club argues that the opinions had a decisional effect because after they were issued by the Services, the EPA sought to make changes to their proposed regulation so as to gain the approval of the Services. Id. at 19–20. The Sierra Club acknowledges that although the agencies deliberated over “how to change EPA’s Rule, following the Services’ jeopardy determination . . . they did not deliberate . . . whether the ESA required changes to the Rule” after the jeopardy opinions’ issuance. Id. at 19 (emphasis in original). The Sierra Club contends that the even though the Services’ jeopardy opinions may be “couched as . . . recommendation[s]” such decisions have “demonstrable legal consequences and operative effect” in light of the Services’ statutory role and expertise. Id.
The Services respond by noting that the jeopardy opinions were not “signed or adopted by the relevant agency decisionmakers, were not publicly issued, and were not treated as official commitments.” Reply Brief for the Petitioners at 3. They also state that the opinions had no “operative effect,” arguing any such claim is “inconsistent with the regulatory scheme, established practice, and the record.” Id. at 4. They conclude by stating that the Sierra Club cannot rely on the purported “operative effect” of the jeopardy opinions as that would essentially be “an effects-based approach” contrary to “the clear distinction that [the] Court has drawn between pre-decisional recommendations and post-decisional memoranda.” Id. at 4.
The Sierra Club states that precedent and statutory text requires the Court to take a fact-specific approach to the operative effect of “nominally ‘draft’ documents.” Brief for Respondent at 21. It further notes that courts are not required to defer to an agency’s formal designation of its documents. Id. It states that FOIA requires the disclosure of “intermediate decisions that shape later outcomes.” Id. at 20. It forewarns that a ruling contrary to the appellate court’s ruling would permit “the Services to conceal the reasons for exercises of ESA authority,” allowing them to review proposed regulations “without anyone knowing what impacts, to which species, the Services considered likely to involve jeopardy.” Id. at 21–22. The Sierra Club concludes that such a result “would be deeply antithetical to the accountability FOIA was enacted to provide.” Id. at 22.