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Supreme Court sides with government over environmentalists in Barrett’s first signed majority opinion

Justice Amy Coney Barrett issued her first signed majority opinion for the Supreme Court on Thursday.
Justice Amy Coney Barrett issued her first signed majority opinion for the Supreme Court on Thursday.Sarah Silbiger/Bloomberg

WASHINGTON — Justice Amy Coney Barrett issued her first signed majority opinion for the Supreme Court on Thursday, siding with the government over an environmental group seeking draft agenda reports about potential harm to endangered species.

The 7-to-2 opinion said the US Fish and Wildlife Service did not have to provide the Sierra Club the guidance it gave the Environmental Protection Agency about a proposed rule regarding power plants that use water to cool their equipment.

The rest of the court’s conservatives joined Barrett’s opinion, as did liberal Justice Elena Kagan. Liberal Justices Stephen Breyer and Sonia Sotomayor issued a mild dissent.

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The case was the first Barrett heard after then-President Donald Trump nominated her to replace liberal Justice Ruth Bader Ginsburg. Barrett was confirmed by the Senate on Oct. 26 and US Fish and Wildlife Service v. Sierra Club was argued on Nov. 3.

It is customary for a new justice to receive a lopsided — if not unanimous — ruling as a first assignment. Barrett’s opinion, assigned by Chief Justice John G. Roberts Jr., was a fact-laden interpretation of the Freedom of Information Act, which provides the public with access to documents used by the government in making decisions.

But there are exceptions to the law, and one concerns the “deliberative process privilege.” It protects documents generated during an agency’s deliberations about policy, as opposed to documents that explain the policy the agency adopts.

Barrett said the “in-house drafts” that the Sierra Club sought were protected, because they reflected “a preliminary view — not a final decision — about the likely effect of the EPA’s proposed rule on endangered species.”

Barrett, 49, was a Notre Dame law professor before Trump nominated her to serve on the US Court of Appeals for the 7th Circuit, and then the Supreme Court.

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Her writing style as a lower court judge was explanatory, and with little rhetorical embellishment. Her 11-page opinion Thursday was similar in tone, with a step-by-step explanation of the bureaucratic process that accompanies the development of an EPA rule, and when advice from agencies should be considered preliminary rather than an official statement.

During agency deliberations, she wrote, “some ideas are discarded or simply languish. Yet documents discussing such dead-end ideas can hardly be described as reflecting the agency’s chosen course. What matters, then, is not whether a document is last in line, but whether it communicates a policy on which the agency has settled.”

As the EPA was considering a proposed rule on “cooling water intake structures,” which suck in vast amounts of water from various sources to cool industrial equipment, it was required to seek guidance from the Fish and Wildlife Service and the National Marine Fisheries Service. The agencies advise on whether proposed rules put aquatic wildlife in jeopardy.

In late 2013, the services drafted opinions that said the proposed rule would have adverse effects. But service officials did not issue the opinions as final, and instead the EPA modified the rule. The services gave a thumbs-up to the new rule, and it was implemented.

The Sierra Club wanted to see all of the paperwork, but the government withheld those draft opinions as covered by the privilege exception in the law.

The US Court of Appeals for the 9th Circuit ruled for the environmental group.

In his dissent, Breyer said there were reasons to think such “draft” opinions were really the documents that affect whether the EPA proceeds with a rule.

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“Agency practice shows that the Draft Biological Opinion, not the Final Biological Opinion, is the document that informs the EPA of the services’ conclusions about jeopardy,” Breyer wrote. He noted that of nearly 7,000 formal consultations between the agencies, Fish and Wildlife issued final opinions finding jeopardy only twice.

“If a Final Biological Opinion is discoverable under FOIA, as all seem to agree it is, why would a Draft Biological Opinion, embodying the same Service conclusions . . . not be?” Breyer asked.