Monday, March 9, 2020

The Complicated Environmental Implications of the Supreme Court’s Cert Grant in Fish and Wildlife Service v. Sierra Club

Last week, the United States Supreme Court granted review in Fish and Wildlife Service v. Sierra Club.  You might think, just based on the names of the participating parties, that a win for the Sierra Club will be a win for the environment.  I’m not so sure.

The case involves the Endangered Species Act, the Freedom of Information Act, and an exchange of documents between two federal agencies.  EPA was preparing a new regulation on cooling water intakes, and, as required by the Endangered Species Act, it initiated consultation with the US Fish and Wildlife Service.  Formal consultations culminate in biological opinions, which explain whether a federal agency action will jeopardize the continued existence of listed species or adversely modify their critical habitat.  In this consultation process, FWS initially prepared final-looking biological opinions that found jeopardy.  But it described the jeopardy opinions as drafts when it emailed them to EPA, and it invited further discussion.  EPA instead decided to change its proposed rule, and a reinitiated consultation on the amended proposal produced a no-jeopardy opinion.

The question now before the Court is whether the Sierra Club could use FOIA to obtain those jeopardy opinions (several other documents are also at issue, but I think the jeopardy opinions are the most important).  The Sierra Club filed a FOIA request, but the Fish and Wildlife Service declined to release the opinions.  It cited FOIA exemption 5, which protects from disclosure intra- or interagency communications that are pre-decisional and deliberative.  The Sierra Club filed suit, asking the court to compel release of the documents, and first the district court and then the Ninth Circuit ruled in the Sierra Club’s favor (on the biological opinions but not on every requested document).  According to the Ninth Circuit majority, the jeopardy opinions, though described as drafts, were finalized within the Fish and Wildlife Service, and therefore represented decisional rather than pre-decisional documents.  In dissent, Judge Wallace disagreed.  He would have treated the biological opinions as pre-decisional drafts.

The case presents some interesting legal questions, but those are only a peripheral focus of this post.  The question I’ll consider, instead, is whether a Sierra Club loss (which I think is most likely what’s coming) would be good or bad for the environment.

It’s easy to understand why a Sierra Club loss might be bad for the environment—and, therefore, why the Sierra Club wanted to bring this case.  The Sierra Club suspects the non-released documents will help show what FWS biologists really thought about the proposed rule, and that what those biologists really thought might be at odds with the text of the final biological opinions.  That information could be important for public transparency.  It also could help the Sierra Club prevail in a court case against the final rule.  That’s because EPA and the Fish and Wildlife Service will both argue that their positions arose out of agency expertise, and therefore deserve deference, and deference is harder for a government agency to get when the agency turns out to have ignored or silenced its own scientists.  Under the current administration, which seems particularly inclined to ignore or silence experts, this kind of documentation could be especially revealing (though all the events at issue in this particular case occurred during the Obama Administration).  And the current administration is hardly the first to play the game of silencing experts while simultaneously asking courts to defer to expertise; nor will it be the last.  More disclosure would help combat such behavior.

But there’s a different way of viewing the dispute, and it puts the United States’ position in a more positive light—even if you’re a committed environmentalist.  Consider a simplified version of the events leading up to this case: EPA proposed a rule; FWS sent EPA a near-final jeopardy opinion; rather than fighting that opinion, EPA changed its rule; and FWS then sent a no-jeopardy opinion.  That sounds like the way interagency negotiations ought to work: one agency says, “no, seriously, we’re really worried about the legality of your rule,” and the other agency says, “okay, we’ll try to fix it in a way that addresses your concerns,” and the first agency says, “we can live with that fix.”

While I don’t think anyone has data on how often this kind of thing happens, I suspect, based on snippets of anecdotal evidence, that it’s more common than most of us realize.  Several years ago, while researching a paper on consultation processes, I found myself talking to a National Marine Fisheries Service biologist about the non-existence of jeopardy and adverse modification opinions during the first year of the Obama Administration.  “Well,” he said (and I’m paraphrasing from old notes), “I’ve got five jeopardy/adverse modification opinions on my desk right now, ready to go out to other agencies.”  He told me he didn’t expect any of the opinions to be finalized, but sending them was an effective way of raising the ante in interagency negotiations and getting other agencies to adjust projects in ways that made them more protective of species. 

NMFS or FWS might be less willing to deploy that option if the agencies expected their shots across the bow to be discoverable under FOIA (or perhaps not; in the past, the agencies have often included draft jeopardy opinions in administrative records, which suggests sometimes they aren’t so worried about disclosure).  And if that’s true, then making a draft jeopardy opinion discoverable might actually limit the use of a tool agencies sometimes deploy to protect species.

So how, you might wonder, do these scenarios balance out?  Is it better for the environment, and for species, to promote transparency and to give environmental groups more leverage in litigation, or is it better to (maybe) protect a tool that sometimes gives agencies leverage in negotiations?  Probably the best answer is that it’s just really hard to know.   

If you do have an intuition, it may turn on whether you believe the primary engine of environmental protection comes from within the agencies or from external pressure and oversight.  And if you are inclined toward the latter view, it may be worth pausing to consider how rare environmental challenges to biological opinions, and to agency decisions more generally, really are.  Of the thousands of biological opinions issued every year, only a few handfuls, at most, draw litigation.  The threat of litigation is more far-reaching, and litigation also tends to focus on particularly high-impact consultations, but still, the vast majority of consultations occur without any realistic likelihood of judicial review.  That suggests an outcome favoring greater disclosure may matter in a fairly small number of cases, while an outcome favoring greater leverage for the Fish and Wildlife Service and the National Marine Fisheries Service might matter more often.

- Dave Owen

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