The Supreme Court granted the Trump administration’s request to review a lower court ruling that would force it to make public sensitive documents from its internal deliberations about changing the regulations for power plants’ cooling water intake systems.
It was a rare victory of sorts for the Trump administration, which has suffered a string of defeats in the courts on environmental matters, largely pertaining to its efforts to promote the development of made-in-America energy projects.
The high court approved without comment the government’s petition last week in the case cited as U.S. Fish and Wildlife Service v. Sierra Club. The fact that the court decided to hear the case doesn’t necessarily mean justices are ready to rule in the administration’s favor, but environmentalists are worried if the Sierra Club loses, it could become more difficult for activists to participate in the policymaking process.
In 2011, the Environmental Protection Agency (EPA), frequently targeted in court by environmentalist groups, proposed modifying regulations governing power plants’ cooling water intake systems, which can lead to crushed and scalded sea creatures. Federal agencies, including the Fish and Wildlife Service and the National Marine Fisheries Service, conferred with the EPA during the policymaking process and drafted provisional opinions saying the proposed regulations were likely to harm endangered species.
Along the way, the agencies changed their minds and issued a “no jeopardy” finding. The Sierra Club sought the draft opinions from the government under the Freedom of Information Act (FOIA) but the Trump administration objected, arguing that documents from the “deliberative process” were exempt, under what is known as FOIA Exemption 5, from public disclosure under the law.
The “main policy reason in favor of the deliberative privilege is to avoid chilling and distorting the candid discussion needed for optimum decision making inside government agencies,” according to a generalized Department of Justice policy statement.
“Although there has been much dispute about the importance of protecting full and frank internal debate, many would agree that there are situations where such protection is important. In addition, if the material is legal advice, protection may encourage government officials to seek the views of government lawyers on the letter and spirit of the law.”
The Sierra Club sought the documents by suing under FOIA. Eventually, in 2018, the 9th Circuit Court of Appeals ordered the Trump administration to hand over the relevant papers. The administration protested, saying the lower court ignored the “deliberative process” privilege. The Sierra Club claimed that even though the documents in question were labeled drafts, they nonetheless qualified as final opinions.
On Oct. 25, 2019, the Trump administration asked the Supreme Court to consider its appeal of the 9th Circuit decision that ordered disclosure. On March 2, the high court agreed to take the appeal.
“We are pleased the Supreme Court has agreed to hear this landmark case,” a Fish and Wildlife Service spokesperson told The Epoch Times. “We stand by our position and look forward to presenting it to the court.”
The Sierra Club’s counsel of record in the case, Sanjay Narayan, didn’t respond to requests for comment from The Epoch Times.
But he told Bloomberg Law that the FOIA statute doesn’t allow the government to withhold key documents simply by labeling them as drafts.
“If an agency makes a decision that alters the course of either another agency’s decision-making or affects the public, it doesn’t get to just stamp that document ‘draft’ or ‘secret’ or ‘for our eyes only’ or anything else,” Narayan reportedly said.
In an unrelated case concerning the Central Intelligence Agency, Supreme Court Justice Brett Kavanaugh rejected efforts to make draft agency documents public.
“There may be no final agency document because a draft died on the vine. But the draft is still a draft and thus still predecisional and deliberative,” Kavanaugh, then a judge on the D.C. Circuit of the U.S. Court of Appeals, wrote for a 2–1 majority in 2014.
“The writer does not know at the time of writing whether the draft will evolve into a final document. But the writer needs to know at the time of writing that the privilege will apply and that the draft will remain confidential, in order for the writer to feel free to provide candid analysis,” wrote Kavanaugh, who previously worked in the White House Counsel’s office under then-President George W. Bush.
Critics accuse groups such as the Sierra Club of having ulterior motives.
“If the Sierra Club cared about endangered species, they’d picket the windmills that are shredding thousands of endangered birds each year,” Donny Ferguson, president of Americans for a Better Economy, an Alexandria, Virginia-based nonprofit organization, told The Epoch Times.
“Their goal is to tear down America’s economy and institute total government control of the people. … The only transparency here is their plan to cut off America’s electricity and the only threatened species here is Americans’ personal freedoms.”