Supreme Court Deals Heavy Blow To Environmentalist Group

Written by Martin Walsh

OPINION: This article contains commentary which reflects the author's opinion




The U.S. Supreme Court has delivered a heavy blow to a major left-wing environmental group.

In the 7-2 ruling, the justices sided with the U.S. Fish and Wildlife Service, thwarting the Sierra Club’s bid to obtain documents concerning a regulation finalized in 2014 relating to power plants.

“The Freedom of Information Act (FOIA) requires that federal agencies make records available to the public upon
request unless those records fall within one of nine exemptions. Exemption 5 incorporates the privileges available to
Government agencies in civil litigation, such as the deliberative process privilege, attorney-client privilege, and attorney work-product privilege,” Supreme Court Justice Amy Coney Barrett wrote.

“This case concerns the deliberative process privilege, which protects from disclosure documents generated during an agency’s deliberations about a policy, as opposed to documents that embody or explain a policy that the agency adopts,” she continued.

Barrett added: “We must decide whether the privilege protects in-house drafts that proved to be the agencies’ last word about a proposal’s potential threat to endangered species. We hold that it does.”

Barrett and the court’s other five conservative justices were joined by liberal Justice Elena Kagan in the majority, with liberals Justices Stephen Breyer and Sonia Sotomayor in dissent.

The ruling in the Sierra Club case limited the scope of U.S. agency documents that would be subject to a federal law called the Freedom of Information Act, which lets people request certain government materials.

The group wanted access to internal documents concerning the Fish and Wildlife Service’s conclusion that a proposed environmental regulation for cooling water intake structures that are used by power plants and other industrial facilities would not adversely affect endangered species, including fish, turtles and shellfish.

The agency initially found in 2013 that the regulation would put the species in jeopardy but its final recommendation to the Environmental Protection Agency in 2014 made the opposite conclusion.

Writing for the court, Barrett said the 2013 draft documents were protected from disclosure because “they reflect a preliminary view – not a final decision – about the likely effect of the EPA’s proposed rule on endangered species.”

A federal judge in California ruled in 2017 that 11 documents had to be disclosed. Trump’s administration appealed and the San Francisco-based 9th U.S. Circuit Court of Appeals in 2018 ruled partly for the government but still found that nine documents had to be released.

After the ruling, Sierra Club lawyer Elena Saxonhouse said the documents “were meant to – and did – determine subsequent agency actions” and therefore should have been disclosed.

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“We’re encouraged by the Supreme Court’s affirmation that courts must inquire into the specific context of draft documents before allowing agencies to withhold them from the public,” Saxonhouse added.

While this case isn’t “landmark” status for the hottest issues of the day, it’s an important win for the rule of law over left-wing activism.