Courthouse Steps Decision Teleforum: U.S. Fish and Wildlife Service v. Sierra Club

In this case, Sierra Club, Inc. submitted a FOIA request to the U.S. Fish and Wildlife Service requesting biological impact reports that were made in consultation with the Environmental Protection Agency. The EPA had planned to construct “cooling water intake structures” and in compliance with the Clean Water Act consulted with U.S. Fish and Wildlife on the question of biological impact. Citing FOIA Exemption 5, the deliberative process privilege, Fish and Wildlife withheld the draft reports. Sierra Club sued and both the District Court and Ninth Circuit sided with Sierra Club, holding to varying degrees that the deliberative process privilege did not cover the requested reports. In Justice Barrett’s first majority opinion and by a 7-2 margin, the Supreme Court overruled the Ninth Circuit’s decision finding that the deliberative process exemption covers “predecisional and deliberative” documents and so protects the draft biological impact reports from FOIA disclosure.

Featuring:
-- Nancie Marzulla, Partner, Marzulla Law
-- Damien Schiff, Senior Attorney, Pacific Legal Foundation