by Sarah Pickering
hould the public get a window into the factors federal agencies considered—or ignored—when devising important environmental, health and safety regulations, or would exposing those internal discussions to public scrutiny chill deliberations? That is the question underlying an amicus brief that the Harvard Law School’s Animal Law & Policy Clinic recently filed in the United States Supreme Court in a Freedom of Information Act (FOIA) case brought by the Sierra Club and involving the public’s right of access to scientific analyses concerning the adverse impacts of federal actions on endangered and threatened species.
The case centers on a 2013 proposed rule by the U.S. Environmental Protection Agency regulating cooling structures used by power plants. After the federal government declined the Sierra Club’s request for records related to the agency’s consultations with the U.S. Fish and Wildlife Service about its potential effects on endangered species, both a federal district court and the U.S. Court of Appeals for the 9th Circuit decided that the documents must be shared. The government then appealed to the Supreme Court, arguing that exposing internal discussions to public scrutiny might inhibit the candid exchange of information and ideas.
The clinic represents as amici curiae the Center for Biological Diversity and Defenders of Wildlife, who argue that the public has both a right and a need to evaluate the facts and science bearing on important federal regulations. The brief was drafted by the Director of Animal Law & Policy Clinic Katherine Meyer and her co-counsel Eric Glitzenstein, who is director of litigation at the Center for Biological Diversity and will be teaching Wildlife Law at HLS this Spring semester.
Professor Meyer recently corresponded with Harvard Law Today about what is at stake, the further ramifications of the case, and her own personal connection to the project.
Harvard Law Today: Can you talk a little about the case at hand and what is at issue here?
Katherine Meyer: Yes. The Sierra Club sued the U.S. Fish and Wildlife Service under the Freedom of Information Act to obtain information on the impacts of a proposed EPA rule governing power plants’ cooling water intake structures on endangered species. The EPA had imposed standards for this that the Sierra Club believes are too low, and they want to get access to a draft biological opinion that concluded that the EPA’s approach would jeopardize the continued existence of several endangered species. Essentially, the way the power plants cool down equipment is to suck water from a nearby water source, such as a river or lake, which in turn also sucks up—and kills—fish, turtles, and other aquatic life from the water—some of which is already on the verge of extinction.
The Fish & Wildlife Service refused, claiming that the draft biological opinion is exempt from FOIA under Exemption 5, which protects certain internal agency deliberations—but only if they are both “pre-decisional” and “deliberative” in nature. Both the trial court and the Court of Appeals concluded that the document was not exempt from disclosure, but the government is now asking the Supreme Court to rule that not only is this particular document exempt, but that this Exemption applies to all pre-decisional documents, regardless of their content. This is highly significant because for decades the courts—including the Supreme Court– have interpreted the Exemption to apply only to information that is both “pre-decisional,” in other words before the agency makes a final decision, and “deliberative” which means that the information reflects advice and recommendations on policy matters. The purpose of the exemption is to avoid chilling frank and candid discussions among agency personnel concerning advice and recommendations on policy matters.
However, since the 1973 Supreme Court ruling in EPA v. Mink, it has been clear that regardless of whether a document is pre-decisional, the Exemption does not apply to information that is purely scientific or factual in nature.
In this case, although we agree with the Sierra Club that this particular document is not even pre-decisional, because it represents the agency’s final analysis of the rule as originally proposed, we got involved to make clear to the Court that even if it disagrees with that position, the document still may not be withheld because it contains a great deal of factual and scientific data and analysis that simply may not be withheld under EPA v. Mink.
HLT: What are the broader implications this case could have?
Meyer: We are concerned that the government is looking for a ruling from the Court that any document that is pre-decisional would be automatically exempt from disclosure under FOIA, regardless of whether it contains purely factual or scientific data. That would mean that vast amounts of information generated by the government prior to any final decision would no longer be available to the public. This will make it much harder to monitor whether the government is accurately representing the scientific and other impacts of its actions, including, for example, whether those actions are contributing to the extinction of wildlife species, exacerbating the climate crisis, or whether, for example, the government is taking adequate steps to address a global pandemic, such as the Coronavirus.
HLT: Are you hopeful that the Sierra Club will win this case?
Meyer: Yes, we are hopeful, especially because during its last term, the Court issued an opinion that greatly expanded the scope of another FOIA exemption that exempts confidential commercial information submitted to the government by corporations and other business interests. Under that ruling, as long as the company states that it regards the information as “confidential” the information is no longer subject to disclosure under FOIA. So, if the Supreme Court also agrees with the government’s position in the Sierra Club case, the two decisions taken together will greatly undermine the whole purpose of FOIA and make it very difficult for the public to monitor what the government is doing—and not doing—to protect wildlife and the environment. Amicus briefs also have been filed in this case by Harvard’s Environmental Law Clinic on behalf of former agency scientists, and even on behalf of a coalition of industry groups who also want to be able to monitor the scientific and factual bases for government decisions.
HLT: What inspired you to work on this brief?
Meyer: I’ve been litigating FOIA cases for many years, so it is one of my areas of expertise, and I am a big fan of letting the public have as much access to government information as possible. I became alarmed when I saw that the Court accepted this case, and as the director of the clinic thought it would be helpful to weigh in on this issue, particularly because it may impact what information we will be able to get access to in the future that impacts our efforts to protect wildlife and captive animals. Eric Glitzenstein, who was my law partner for many years and is now the director of litigation at the Center for Biological Diversity, wanted to prepare an amicus brief on behalf of the Center and Defenders of Wildlife—two groups that rely heavily on government information to advocate for protection of endangered species—so we decided to work on this together this summer.
HLT: Is there anything else you’d like to share?
Meyer: Just that it is very important for the public to know what the science says and whether the science is consistent—or inconsistent—with actions taken by the government, with taxpayer money, I might add. For example, the very test under the Endangered Species Act is supposed to be “what is the best available science?”. At a time when there seems to be an alarming anti-science movement going on in the U.S., I believe we should all be concerned about the implications of this case. We need to be vigilant about making sure the government acts in our interests based on the science and facts—rather than advancing a particular political agenda.