August 3, 2020 – Today, the Clinic filed an amicus brief in the U.S. Supreme Court urging the Court to affirm a 9th Circuit decision in a case involving the application of the Freedom of Information Act (FOIA) to Biological Opinions prepared under Section 7 of the Endangered Species Act (ESA). The 9th Circuit rejected the argument of the U.S. Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) that the Biological Opinions are exempt from disclosure under the deliberative process privilege.
In its brief, the Clinic argues that the disclosure of draft Biological Opinions would not harm the interests protected by the deliberative process privilege and is important for ensuring transparent and accountable decisionmaking under the ESA. For one, disclosure would not discourage candor among agency staff because draft Biological Opinions are often included in the administrative record and are frequently released to the public, so agency staff would not have any expectation that such drafts are kept confidential. Secondly, the brief explains that draft Biological Opinions, which document scientific findings on whether a proposed agency action under might jeopardize threatened or endangered species and/or their critical habitat carry real legal and practical weight and are not akin to the mere recommendations of lower-level staff. Third, disclosure of draft Biological Opinions informs the public of the reasons underlying the policies that agencies adopt and thus fulfills FOIA’s purpose to promote government accountability and an informed citizenry.
The brief was filed on behalf of former National Oceanographic and Atmospheric Administration (NOAA) and NMFS official Andrew Rosenberg, former U.S. Environmental Protection Agency (EPA) official Jacob Carter, and former U.S. Department of Interior (DOI) official Joel Clement.
The brief is available here: United States Fish and Wildlife Service, et al. v. Sierra Club, Inc. (U.S. 19-547)