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Vol. 52-1 Federal Casenote

May 6, 2022

Federal Casenote 

United States Fish and Wildlife Services et. al. v. Sierra Club, Inc.


This case arose when the Sierra Club submitted Freedom of Information Act (FOIA) requests for records concerning consultations between the United States Environmental Protection Agency (EPA), and the U.S. Fish and Wildlife Service and National Marine Fisheries Services (together, the Services).[1] The primary document considered by the Court’s decision is a “draft biological opinion” prepared by the Services’ staff pertaining to EPA’s proposal concerning “cooling water intake structures.”[2]

Between 2011 and 2013, EPA promulgated a proposed rule regarding “cooling water intake structures” to minimize potential harm to marine animals that are protected under the Endangered Species Act (ESA).[3] The Services’ prepared a “draft biological opinion” that determined the 2013 rule would still jeopardize the animal populations at risk.[4] As such, decisionmakers at the Services’ determined that more consultation and work with the EPA was necessary to develop a sufficient proposal.[5] Following this, the EPA abandoned its initial 2013 rule and began development on a new proposed rule, which was finalized in 2014.[6] There was never an official draft or final opinion issued on EPA’s 2013 proposal.

Sierra Club sued the Services and claimed that the Services’ invocation of the deliberative process privilege was a way of shielding their draft opinions that ultimately expressed their final view on EPA’s 2013 rule.[7] The Ninth Circuit affirmed, agreeing with Sierra Club’s argument.[8] Judge Wallace dissented on the Ninth Circuit’s opining that “the drafts were part of the ongoing consultation process,” and protected by the privilege which is relevant to the Court’s decision here.[9] 

Court’s Analysis 

The Court began its analysis with the purpose of the deliberative process privilege. Specifically, the Court established that the deliberative process privilege exists to encourage candid discussions between agencies, resulting in an improved decision-making process, and to prevent agencies from operating under a microscope.[10] It follows that the deliberative process privilege must protect documents that are indeed deliberative and pending. The privilege, however, does not extend to a final decision, as the deliberations are complete at that point.[11]

            The fact that a document is not followed by any further drafts or deliberations does not, alone, make the document itself a final document because “[s]ometimes a proposal dies on the vine.”[12] This is what happened with the Services’ “draft biological opinion” on the EPA’s 2013 rule–it died on the vine.[13] In making this determination, the court pointed to various factors regarding the Services’ “draft biological opinion” on EPA’s 2013 proposed rule.

First, and most importantly, the Court pointed to the fact that the Services’ never formally approved or adopted the opinion, nor did they send the EPA their opinion on the proposed 2013 rule as is typical practice when for draft and final biological opinions.[14] The Court actually pointed to this as a further indication that the “draft biological opinion” at question in this case was more likely a “draft of a draft” because of the Services’ internal determination that further work needed to be done before even issuing a draft opinion.[15]

Next, the Services and the EPA had an agreement to allow for further changes following the circulation of the “draft biological opinion” to the EPA.[16] Because the drafts were allowed to change following EPA’s opportunity to comment, then the “draft biological opinion” could not have exhibited the agencies’ final decision on the matter and as such, was deliberative.[17]

Moreover, in determining the finality of an opinion, courts must examine whether the opinion led to any “direct and appreciable legal consequences” as is a necessary result of an agency’s final opinion on a matter—the practical consequences of a decision is not indicative of an opinion’s finality.[18] Here, there were no legal consequences of the Services’ internally, unapproved draft opinion—nothing from the draft opinion made its way into practice either at the Services or at the EPA, nor was either agency tied to anything within the draft opinion.

The Court confirms, nonetheless, that agencies cannot simply “stamp every document ‘draft,’” to protect their decisions, because the inquiry that the courts make is a functional inquiry rather than a formal one.[19]  In other words, the court will have to examine the facts of each individual case to make a determination as to whether or not a “draft” opinion is indeed considered by the agency to be “draft,” or if it is rather a final opinion and thereby not protected by the deliberative process privilege. The Court does not indicate how future courts should make this determination. 

 Implications of the Decision 

The Supreme Court’s decision broadens the scope of what is considered a “draft” document for the purposes of applying the deliberative process privilege. However, the Court left the scope of the decision rather open-ended, meaning that it will come down to the district and appellate courts to determine what documents fall under the exclusion. In turn, this will likely lead to circuit splits in how to treat certain kinds of documents under deliberative process privilege. Following such a split, forum-shopping may arise as a concern.

As the Court indicated in the decision, courts will have to examine exactly how an agency treats a document to see if it reflects its final view on the subject in question and if the document results in any appreciable change to the legal requirements or actions of an agency. For example, a proposed rule that an agency informally adopts that alters how the agency responds to a situation could be seen as final, even if there was no “final opinion” issued concerning the adoption of the new rule. 

This will likely result in an increased strain on the judiciary, requiring a case-by-case review and determination as to whether a document is indeed a “draft” and thus protected by the deliberative process privilege or if the agency treated the document as final by publishing the rule or by enforcing the changes required by the rule, and, as such, not protected.

            Regardless, the decision provides agencies with more freedom in their use of the deliberative process privilege to protect draft work product. This could very likely increase internal deliberations within agencies and increase the candor of intra-agency discussions regarding forthcoming rules or decisions. Furthermore, agencies may be more willing to increase their solicitation of public comments and input since internal deliberations on such comments will be protected, even when pulling together a draft opinion in response to public comments. However, as the Sierra Club suggested, this is a double-edged sword as this increased candor and usage of the deliberative process privilege could result in government agencies being less forthcoming in working with non-agency groups.[20] This is especially true if an opinion results in the abandonment of the proposed rule and further intra-agency deliberations, as in the case of the proposed rules in US Fish and Wildlife v. Sierra Club.


Amy Rodriguez is an Assistant Attorney General for the State of Texas. Her work centers on counseling state agencies on prosecution and defense litigation strategy. She is a 2017 graduate of the University of Texas School of Law.

Evan Kudler is a 2L who joined TELJ in his fall 1L year. He is from El Dorado Hills, California and studied Economics at the University of California, Santa Barbara for undergrad. Before coming to law school, he worked at Pacific Gas & Electric Company in San Francisco working on the decarbonization effort of the electricity sector. He will be joining Baker Botts Environmental litigation group this summer before he goes off to get his LLM in Global Environment and Climate Change Law at the University of Edinburgh in the fall. He hopes to focus his work on the intersection between environmental justice and climate change.

 [1] U.S. Fish and Wildlife Service et. Al. v. Sierra Club, Inc., 141 S. Ct. 777, 784-85 (2021) [hereinafter “US Fish and Wildlife”].

[2] Id. at 785.

[3] Id. at 784.

[4] Id.

[5] Id.

[6] US Fish and Wildlife, supra note 1, at 784.

[7] Id.  at 785.

[8] Id. (holding that the “draft biological opinions…represented the Services’ final opinion that the EPA’s 2013 proposed rule was likely to have an adverse effect on certain endangered species.”).

[9] Id.

[10] See id.; see also Department of Interior v. Klamath Water Us­ers Protective Assn., 532 U. S. 1, 8 (2001) (determining in relevant part that “officials will not communicate candidly among themselves if each remark is a potential item of discovery and front page news.”).

[11] US Fish and Wildlife, supra note 1, at 786.

[12] Id. “[Dying] on the vine” simply means that the rule was neither denied or approved, and, for the case herein, the Services did not officially adopt an opinion nor was an opinion issued to EPA on EPA’s proposed 2013 rule.

[13] Id. at 788

[14] Id.

[15] Id.

[16] US Fish and Wildlife, supra note 1, at 787.

[17] Id.

[18] Bennett v. Spear, 520 U.S. 154, 170, 178 (1997) (holding that a final biological opinion “leads to direct and appreciable legal consequences…[when it] alters the legal regime to which the action agency is subject.”).

[19] US Fish and Wildlife, supra note 1, at 788.

[20] Sierra Club warns that there is a risk of agencies overusing the term “draft” for purposes of protecting internal deliberations, even if the agency practically intends for such an opinion to be a final decision.