High Court Backs Secrecy Over Draft Records About Harm to Endangered Species

An aerial shot of the nuclear power plant at Diablo Canyon in California with its once-through water discharge clearly visible on the left hand side of the photo. (Wikimedia Commons via Courthouse News)

WASHINGTON (CN) — Endorsing government secrecy in a 7-2 ruling Thursday, the Supreme Court found that the U.S. Fish and Wildlife Service need not disclose what proved to be the “last word” about how a proposed policy might harm endangered species.

Justice Amy Coney Barrett wrote the majority ruling this morning, her first in a case that was also her first oral argument upon confirmation to the bench last year. In many respects the decision echoes concerns that Barrett voiced at the November hearing: that the government might find itself too exposed if unable to keep records under wraps by invoking the Freedom of Information Act’s deliberative process privilege.

Quoting precedent that protects agencies from being “forced to operate in a fishbowl,” Barrett noted that deliberative process privilege shields “documents reflecting advisory opinions” as well as internal “recommendations and deliberations” from disclosure — and that the documents in question fell under this umbrella.

The challenge stems from a request by the Sierra Club and other groups for draft biological opinions on power plant cooling mechanisms that suck up water from lakes, rivers, or oceans and in the process, frequently cull fish and wildlife caught in the fray.

Before finalizing its rule for such mechanisms, the EPA sought comment on whether intakes could hurt nearby wildlife, including endangered species.

Fish and Wildlife sought a reversal after the Ninth Circuit ruled that the agency had no right to shield its 2013 draft opinion and accompanying research.

“The Supreme Court just dealt a severe blow to government transparency and accountability, as well as the Endangered Species Act,” Brett Hartl, government affairs director at the Center for Biological Diversity, said in a statement Thursday. “This decision will make it easier for political appointees to meddle secretly in scientific decisions, gut protections for our air and water, and push more of our wildlife toward extinction. Now more than ever, Congress must step in and end the abuse of the deliberative process privilege or we’ll have an unaccountable executive branch.”

Barrett agreed with Fish and Wildlife that the documents should be considered not as draft biological opinions but as drafts of draft biological opinions.

“The drafts were prepared by lower-level staff and sent to the Services’ decisionmakers for approval,” Barrett wrote. “Sierra Club characterizes the drafts as polished documents lacking only an autopen signature. But the determinative fact is not their level of polish.

Even assuming that a draft biological opinion would have expressed the agency’s settled conclusion, Barrett said that a draft of a draft is a far cry from an “agency decision already made.”

“The deliberative process privilege protects the draft biological opinions from disclosure because they are both predecisional and deliberative,” Barrett wrote.

Justice Stephen Breyer argued otherwise, however, in a dissent joined by Justice Sonia Sotomayor.

“Literally speaking, a draft biological opinion is a ‘final’ document with respect to its content,” Breyer wrote. “That is in fact the key difference between a draft biological opinion and a draft of a draft biological opinion. If further deliberation about the draft’s content is likely, the document is not a draft biological opinion. It is a draft of a draft.”

Breyer’s dissent also expresses confusion about why, since the content of the draft is final, it wouldn’t be publicly discoverable.

“If a final biological opinion is discoverable under FOIA, as all seem to agree it is,” he wrote, “why would a draft biological opinion, embodying the same Service conclusions (and leaving the EPA with the same four choices), not be?” (Parentheses in original.)

Breyer said several similarities between the two, including their purpose and influence over the agency’s practices, “convince me that a Draft Biological Opinion would not normally enjoy a deliberative privilege from FOIA disclosure.”

In November, Barrett warned that issues could arise around “peripheral considerations” if criteria in a request were overly broad, and questioned how agencies could be subject to “bright line” rules.

Representatives for Fish and Wildlife did not return a request for comment.

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