On November 20, 2017, the Emmett Environmental Law and Policy Clinic filed a brief in the Ninth Circuit supporting the release of important agency scientific documents under the Freedom of Information Act (FOIA). The Clinic filed the amicus brief on behalf of the Union of Concerned Scientists in a case involving draft Endangered Species Act (ESA) documents prepared by the U.S. Fish & Wildlife Service and the National Marine Fisheries Service (the Services) to assess the impact of a proposed Clean Water Act regulation on endangered and threatened species.
In December 2013, the Services prepared draft biological opinions concluding that the proposed regulation, which applied to power plant cooling water intake structures, would jeopardize the continued existence of some listed species. When the Environmental Protection Agency (EPA) finalized the regulation the following year, the Services released a joint biological opinion concluding that the regulation would not cause such jeopardy.
The Sierra Club filed FOIA requests, asking the Services to release the draft biological opinions and other draft ESA consultation documents. When the Services refused, invoking a doctrine known as the deliberative process privilege, the Sierra Club sued to gain access to the documents. The district court ruled in favor of the Sierra Club, ordering the Services to release the documents. The Services have appealed that decision to the Ninth Circuit Court of Appeals.
The Clinic’s brief argues that the deliberative process privilege should rarely apply to scientific documents such as biological opinions. Keeping such documents secret undermines government transparency and accountability. In science-driven processes like ESA consultation, it is important for the public and courts to be able to know that agencies have followed the expert advice of their scientists and that such analyses have not been undermined by political considerations. Moreover, withholding these scientific documents does little to advance the purpose of the deliberative process privilege, which is to promote candid deliberations on sensitive policy matters. The brief therefore argues that the Ninth Circuit should adopt a presumption that the deliberative process privilege does not apply to ESA consultation documents.