"The federal government does not need to disclose draft documents that informed its conclusions about the harm an EPA rule would pose to vulnerable plants and animals, the Supreme Court ruled today.
In a 7-2 decision, and the first majority ruling led by Justice Amy Coney Barrett, the court said that the Freedom of Information Act does not require the release of a draft document that would offer the public more detail about what prompted federal regulators to change their conclusions in an Endangered Species Act consultation done in support of an EPA rule.
"The deliberative process privilege protects the draft biological opinions from disclosure because they are both predecisional and deliberative," Barrett wrote in the opinion issued this morning.
During arguments last November in Fish and Wildlife Service v. Sierra Club, the first in which Barrett participated, the Supreme Court's most junior justice asked the parties in the case to delineate which factors are relevant to determine whether a record is exempt from disclosure under the Freedom of Information Act (Greenwire, Nov. 2, 2020).
At issue in the case was a 2013 draft biological opinion and other records underpinning a 2014 EPA rule governing power plant cooling water intake structures. The draft biological opinion from FWS determined that a proposed version of the EPA rule would harm plants and animals covered under the Endangered Species Act. EPA later finalized a revised version of the regulation."
Pamela King reports for E&E News March 4, 2021.
SEE ALSO:
"SCOTUS Rules Against Sierra Club in Environmental FOIA Case" (Bloomberg Environment)
"Barrett Authors First U.S. Supreme Court Ruling, A Loss For Environmentalists" (Reuters)
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