A Court-Side Seat: Clean Air, Clean Water, Endangered Species and Deliberative Process Privilege

Environment green puzzle

Significant environmental law rulings made recently by the federal courts.

April 19, 2021
Anthony B. Cavender - Gravel2Gavel

The federal courts have issued some significant environmental law rulings in the past few days.

THE U.S. SUPREME COURT

U.S. Fish and Wildlife Service v. Sierra Club, Inc.
On March 4, 2021, the court held that the deliberative process privilege of the Freedom of Information Act shields from disclosure in-house draft governmental biological opinions that are both “predecisional” and deliberative. According to the court, these opinions, opining on the Endangered Species Act (ESA) effects on aquatic species of a proposed federal rule affecting cooling water intake structures—which was promulgated in 2019—are exempt from disclosure because they do not reflect a “final” agency opinion. Indeed, these ESA-required opinions reflect a preliminary view, and the Services did not treat them as being the final or last word on the project’s desirability. The Sierra Club, invoking the FOIA, sought many records generated by the rulemaking proceeding, and received thousands of pages. However, the Service declined to release the draft biological opinions that were created in connection with the ESA consultative process.

Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com



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