United States Fish and Wildlife Serv. v. Sierra Club, Inc. (19-547)

argument 19-547

United States Fish and Wildlife Serv. v. Sierra Club, Inc.

Supreme Court of the United States 1h 9m 8 speakers 8 chapters transcribed 8 days ago official recording ↗

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What is the legal significance of the December 2013 draft biological opinions?

John G. Roberts 0:00

We will hear argument first this morning in case 19-547, United States Fish and Wildlife Service versus Sierra Club. Mr. Garnieri.

Unknown 0:10

Mr. Chief Justice, and may it please the court, the December 2013 draft biological opinions are privileged pre-decisional deliberative materials. They were written by staff at the services as a recommendation to agency decision makers about the position the services should adopt in the ongoing consultation with the EPA. When the relevant decision-makers were presented with these drafts, they did not adopt them. They did not sign them, and they did not even transmit them in full to the EPA. Instead, they decided that more work needed to be done before making a final decision. The Ninth Circuit committed two principal errors in concluding, nonetheless, that these drafts are outside the scope of the deliberative process privilege.

Unknown 0:53

First, the Ninth Circuit treated the draft as final rather than pre-decisional because it viewed them as the service's last word on the version of the EPA rule under consideration in December 2013. But the EPA modified its approach, and the services never had any occasion to make a final decision about the abandoned version of the EPA rule. In the D.C. Circuit's memorable words, the December 2013 draft opinions died on the vine without ever blossoming into a final decision. Second, the Ninth Circuit viewed these drafts as final documents because the drafts largely don't contain redlining, marginal comments, or other obvious signs of still being in flux. That reasoning is unsound. No one would confuse a law clerk's draft with a final decision by a judge, even if the draft is pristine.

Unknown 1:45

The key point is that the decision makers at the services had not yet made up their mind. Their deliberations had not yet come to an end. When the services did make a final decision in May 2014, they released an 85-page joint opinion explaining their reasoning to the public. Here, respondents seek to compel the disclosure of earlier drafts, which recommended reasoning that the services never adopted about a version of the EPA rule that never saw the light of day. The court should reject respondents' efforts to pry into those materials.

John G. Roberts 2:17

Mr. Garnieri, before you can decide whether something is pre-decisional, you have to know what the decision is. And why isn't the decision here EPA's final rule on the cooling water intake policy? structures and the service's opinion simply is pre-decisional from the perspective of that final rule?

Unknown 2:41

Mr. Chief Justice, we think the final decision here is the service's decision in the ongoing consultation. So, that is, the final decision occurred in May of 2014 when the services exercised their authority under the Endangered Species Act to render a biological opinion with respect to whether EPA's proposed action would cause jeopardy to endangered

John G. Roberts 3:04

species. That itself doesn't represent any action by the Service with respect to anything other than the EPA decision. I mean, it is pre-decisional with respect to that decision.

Unknown 3:20

That's right, Your Honor, but we think the deliberative process that should be the focus of the court's attention here is the deliberations that were occurring within the services about whether or not the EPA's proposed action would cause jeopardy.

John G. Roberts 3:32

No, I know that's what you think. I'm trying to figure out why. I mean, you talk about, within an agency, the different steps in the process, and you say, well, none of those steps is actually... you know, final and decisional. But here, all of a sudden, you get to the end of the services role and it's final and not pre-decisional even though it's just part of another ongoing process. In other words, I'm not sure that your position doesn't prove too much.

Unknown 4:05

Mr. Chief Justice, we think the statute itself makes clear that there is a decision-making process that concludes with the issuance of the final biological opinion That's in Section 7 of the Endangered Species Act. The implementing regulations also make clear that with respect to the interagency consultation, it concludes with...that process concludes with the issuance of a final opinion.