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On Monday, which seems like a millennium ago, the newly constituted Supreme Court heard its first environmental case — which was a case about the secrecy of government deliberations. In this case, those deliberations involve the science behind endangered species protections. The Environmental Protection Agency (EPA) drafted a rule about water discharges and that triggered a requirement that government wildlife agencies look at how that rule might harm endangered species. Agency scientists then study the question and write a “biological opinion” on what they think the impact of the rule will be. The Sierra Club sued arguing the Freedom of Information Act (FOIA) requires the agencies to make public their biological opinions and even the drafts of them.
Why This Matters: The case has ramifications beyond endangered species — it goes to scientific integrity and government transparency. Scientists may need some ability to argue and debate without having all their “deliberations” made public — otherwise, that might “chill” a candid back and forth about the best decision — in this case the most supportable one scientifically. However, the “biological opinion” is a decision by the issuing agency, and stamping it draft in order to keep it from being made public is not right either. We need to understand what underpins agency decisions – no matter who is President.
The Supreme Court Argument
Our friends at SCOTSblog did a great job of summarizing the oral argument — and the discussion around how the court might draw a line between making agency draft documents public and keeping them confidential in order to preserve the “deliberative process” of the agency’s scientists and regulation writers. The biological opinions themselves have been considered “final” documents and thus cannot be withheld from the public under the FOIA. But in this case, the Justice Department argued that even those were pre-decisional since they pre-dated the EPA final regulation. However, the Sierra Club effectively explained that the final opinions have legal effect — the “action” agency’s choices are constrained by these scientific assessments of what the biological impact of a rule will be on a species on the brink of extinction.
But what about drafts of those opinions? That is a trickier question. It seems clear that just stamping a final opinion “draft” in order to shield it from the public is not right. But real drafts — that actually predate later version — those might be deserving of legal protection under the sunshine law which protects deliberations so that they will happen freely within the government. And what if the agency’s scientists are reversed by political interference in a final biological opinion — that might weigh against the deliberative process exemption.
To Go Deeper: Read the SCOTUSblog coverage here. And stay tuned for a final decision by July. We will see how Justice Barrett rules.
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