Ninth Circuit Broadens Access to ESA Decision-Making Drafts
Litigants challenging agency actions that require interagency consultation will have greater opportunities to obtain drafts of decision documents, preliminary technical materials, and interagency email or other correspondence as a result of a recent Ninth Circuit decision. In Sierra Club v. U.S. Fish and Wildlife Service, the Ninth Circuit rejected efforts by federal government lawyers to shield a host of agency documents from public disclosure in a case involving consultation under Section 7 of the Endangered Species Act (ESA). The decision will increase the visibility and use of the Freedom of Information Act (FOIA) as a tool to gain access to pre-decisional documents in challenges to federal agency actions implicating the ESA.
The Endangered Species Act and Section 7 Consultation
The ESA requires federal agencies to conserve endangered and threatened species. Section 7 provides for interagency review of proposed governmental actions that may affect threatened or endangered species. A federal agency must consult with the U.S. Fish and Wildlife Service and/or the National Marine Fisheries Service (collectively, the “Services”) whenever it engages in an action that “may affect” a species that is protected under the ESA. Consultation is intended to ensure that the agency action is “not likely to jeopardize the continued existence” or “result in the destruction or adverse modification of habitat” of any endangered or threatened species.
Consultation may be either formal or informal, depending upon whether the acting Agency determines that the action a) will not affect listed species, b) is “Not Likely to Adversely Affect” listed species, or c) is likely to affect listed species. When a Federal agency determines (through a biological assessment or similar review) that its action is “likely to adversely affect” a listed species, the Agency must formally consult with the Services. The Services must then prepare a written biological opinion on whether the proposed action poses “jeopardy” or “no jeopardy” to the continued existence of a listed species or its critical habitat. If the opinion results in a “jeopardy” determination, the Services must propose “reasonable and prudent alternatives” (RPAs) to the action that would avoid jeopardy. At the end of consultation, the biological opinion is included in the administrative record of the Agency action. That record then becomes the basis upon which an appeal of the decision may be litigated.
Throughout the consultation process, government lawyers prepare draft documents, emails, and other communications that they then circulate internally among the consulting agencies. These informal and/or draft communications often reveal questions and issues that never make their way into a formal decision, but are nonetheless illuminating as to the issues debated. Sometimes they include draft jeopardy opinions, draft RPAs, or drafts of proposed rule changes. Agency practice has sometimes been to not release these draft and informal documents under FOIA, and not to place them in the administrative record. The Services (and agencies broadly) often take the position that these drafts and interagency materials are “deliberative” and therefore either not relevant to review of the final decision, or privileged.
EPA’s 316(b) Cooling Water Rule
The Sierra Club decision addresses EPA’s 316(b) Cooling Water rule.Under Section 316(b) of the Clean Water Act, EPA is required to use the best available technology (“BAT”) in order to minimize adverse environmental impacts of constructing “Cooling Water Intake Structures” or “CWIS.”
CWIS are intake structures that extract water (often in extremely large amounts) from nearby water sources such as rivers and lakes for cooling. Over half of all water withdrawn in the United States each year is for cooling water. CWIS can pose threats to aquatic organisms by “impingement” (trapping organisms against structures and screens) and “entrainment” (suction into the cooling system). The potential harm to aquatic organisms most directly relates to the amount of water the structure withdraws and the type of facility in use: “Once-through” cooling systems that draw cold water in and release heated water back to a waterbody will generally create a greater potential for harm than “closed-cycle” cooling systems, which recirculate the same water within a CWIS by using towers or reservoirs to dissipate heat. In addition to the fundamental CWIS design, various “exclusion and collection” technologies, such as screens, traveling screens, barrier nets, and return systems work to minimize impingement mortality and entrainment.Under the 316(b) rule, CWIS operators must demonstrate that the technology they use is the best technology available to minimize impingement and entrainment. Cooling water intake requirements are enforced through the National Pollutant Discharge Elimination System (NPDES), which govern how “point sources” (such as plants and facilities) may discharge into waters of the United States.
ESA Challenges to the 316(b) Rule
The long legal process to get to the most recent CWIS regulation started in 2004. A 2004 proposed rule provided that large existing power plants could comply with BAT standards by choosing from a suite of designated technologies, including a “cost-benefit comparison” compliance option that allowed site-specific variances from the rule’s standards if a facility could demonstrate that its compliance costs significantly outweighed any environmental benefits. The rule was challenged by environmental groups. On January 25, 2007, the Second Circuit remanded the rule back to EPA, holding that Section 316(b) did not authorize EPA to provide for site-specific determinations of BAT based on a cost-benefit analysis. The U.S. Supreme Court then reversed in 2009, holding that Section 316(b) authorized EPA to compare costs with benefits in determining BAT, but expressing no view on the remaining bases for the Second Circuit’s remand. Following this litigation and various remands, EPA proposed a new rule in April 2011 that included site-specific compliance options, and received over 1100 comments.
In 2012, EPA began an informal consultation with the Services on the effects of the proposed rule on listed species and critical habitat. Initially, EPA determined (in a draft biological evaluation) that the proposed rule was unlikely to adversely affect listed species. The Services disagreed, and EPA requested formal consultation. The Services received an updated, November 2013 version of the draft rule along with comments from EPA and, in December 2013, prepared a draft “jeopardy” opinion on the November 2013 rule. Portions of the draft “jeopardy” opinion and accompanying RPAs were sent to EPA staff via email in December 2013. On March 14, 2014, EPA issued a new version entitled “Final Rule and Preamble.”  On March 31, 2014, the Services requested clarification from EPA on that rule. In April 2014, internal drafts of a “jeopardy” biological opinion were circulated within the Services (but not to EPA). Finally, on May 19, 2014, the Services issued a joint final “no jeopardy” biological opinion on the March 14, 2014 rule.
The final rule was published on August 15, 2014. The rule’s statutory requirement to use BAT does not require closed-cycle cooling systems. Instead, EPA determined that the best technology actually “available” on a national basis may vary, depending upon site-specific factors such as constraints on land availability or limited ability to retrofit. This rule was once again challenged on all fronts, by industry petitioners and environmental groups alike. But in July 2018, the Second Circuit upheld the EPA’s August 2014 Rule, including against challenges based on ESA consultation.
The Sierra Club’s FOIA Request and FOIA litigation
At about the same time as EPA’s publication of the final rule, the Sierra Club submitted FOIA requests to the Services seeking records from its consultation with EPA on the 316(b) rule. In response, the Services produced hundreds of documents (some of which were redacted), and withheld others under FOIA Exemption 5 (protecting “inter-agency or intra-agency memorandums and letters that would not be available by law to a party other than an agency in litigation with the agency”). This exemption, which incorporates recognized discovery privileges, is used to shield records subject to the “deliberative process privilege.” It is designed to promote free agency deliberation, but in practice is often interpreted so broadly as to shield from disclosure important documents that the public (including litigants) are entitled to view. In this case, the Services sought to withhold:
- Three draft biological opinions: two from December 2013 and one from April 2014, in which they found “jeopardy”;
- Three versions of RPAs: two from December 2013 and one from March 2014, that would accompany a “jeopardy” opinion; and
- Various statistical tables, guidance and technical documents for specific species, criteria and guidelines for habitat protection, and other materials related to sea lions, abalone, salmonids, and turtles.
The Services argued that, because these documents pre-dated the May 2014 “no jeopardy” opinion, they were pre-decisional to that final opinion and protected by the deliberative process privilege. The Ninth Circuit disagreed. It ordered the Government to release the December 2013 draft biological opinions, the March 2014 RPAs, and the statistical tables and guidance that had accompanied the drafts, holding that this material did not meet the requirements of the deliberative process privilege.
The Ninth Circuit’s Interpretation of the Deliberative Process Privilege in ESA Consultation
Due to its breadth, the deliberative process privilege is frequently used by administrative agencies to deny access to records. But FOIA was enacted in 1967 to promote disclosure and transparency, not withholding; so courts interpret its exemptions narrowly.
This very breadth is why the deliberative process privilege is considered by some to be susceptible to government abuse, and was recently narrowed further by legislation. In 2016, Congress amended FOIA to clarify that information shall only be withheld if disclosure is prohibited or if release poses a foreseeable harm. As amended, to qualify for protection, the Agency must show that the document in question is both“pre-decisional” and substantively deliberative. It must further show that “disclosure of the materials would expose an agency’s decision-making process in such a way as to discourage candid discussion within the Agency and thereby undermine the Agency’s ability to perform its functions.” 
The Ninth Circuit applied this new standard in Sierra Club. The court agreed that the April 2014 draft “jeopardy” opinion was protected as an internal Agency deliberative document because it had only been circulated within the Services. However, the court held that the December 2013 draft “jeopardy” opinions, the March 2014 RPA, and the statistical and technical documents provided to EPA were not pre-decisional and therefore not privileged. Because the 2013 opinions represented the Services’ final view as to the November 2013 Rule, the Court determined that they were not deliberative. The Court wrote: “these opinions, created pursuant to an ESA Section 7 formal consultation, contain the final conclusion of the final decision-makers – the consulting Services – regarding whether a proposed regulation will harm protected species and habitat.” Throughout the opinion, the court focused heavily on the internal decision-making process within the Services, but held that, once the materials were sent to EPA, the internal decision-making and deliberation were complete.
Applying the Sierra Club Decision to Other Agency Actions that May Require ESA Consultation
For ESA practitioners, the Sierra Club decision is welcome news. Rather than examine the full interagency decision-making process for the 316(b) rulemaking, the Court looked solely at the development of the drafts and opinions within the Services themselves. The Ninth Circuit viewed only the Services’decision-making process as protected by the privilege, not the overall EPAdecision-making process leading to the final 316(b) rule.
If the Services are considered to have provided the “final” view of “draft” products of action agencies, the door is open for third parties to obtain those “final” views. Even more important, these “final” views should arguably be included in the administrative record of an Agency action as non-deliberative material. Notably, the Sierra Club and other environmental groups had argued in the Second Circuit that these documents should have been included in the administrative record for the 316(b) rule; while the Second Circuit rejected the argument based on a privilege log, it is unknown how that challenge may have fared in the aftermath of Sierra Club. Although courts reviewing Agency actions give a “presumption of regularity” and completeness to the Agency’s certified record, that presumption is rebuttable and can be overcome if a litigant can demonstrate that the record is incomplete (for example, by using material obtained in a FOIA request).
After Sierra Club, challengers will likely employ FOIA more frequently to open the record on decisions—particularly from agencies that are frequently required to consult (such as the Army Corps of Engineers, the Bureau of Reclamation, the Department of Transportation, and EPA). They may find that FOIA requests can be used to force the release of interagency materials that were generated and circulated in Section 7 consultations, regardless of the ultimate role of those opinions played in the action Agency’s final decision. Such materials may include draft biological opinions (reaching conclusions opposite to a Service’s final determination), communications related to interagency consultation, or underlying technical documents--any of which may be considered improperly excluded from an administrative record. For example, a draft biological opinion that concludes that a proposal jeopardizes listed species is subject to release if it was transmitted to an action agency for use in its decision-making process – as the Ninth Circuit held, the opinion is the Services’ final decision, independent from the decision-making process of the action agency. Sierra Club could also have consequences inside federal agencies (particularly for regions in the Ninth Circuit). Litigation-wary federal personnel may, for example, share less information between agency and Service; create fewer written drafts; or review and evaluate material later in the process—which could in turn create additional grounds for ESA challenges if it leads to an insufficiently robust consultation.
Even the NPDES permits that remain to be issued with the new 316(b) standards could be subject to challenge with documents obtained via FOIA. The Second Circuit’s Cooling Water Intake Structure decision approved EPA’s procedural structure in the final 316(b) rule, allowing for individualized and site-specific analysis of each permitting decision, due to the “binding commitment” in the Services’ “no jeopardy” biological opinion that the Services will provide technical assistance to State and Tribal authorities and will, when required, request that States issue new NPDES permits to remove or reduce detrimental effects on species. The technical assistance and consultation envisioned in the 316(b) Biological Opinion requires frequent and ongoing information exchanges between delegated State authorities and local Services directors for implementation; it is not yet clear whether these exchanges and opinions will be required to be included in the administrative record for any new permit, or if a FOIA or state public records law challenge would result in additional information that could undermine a record and the subsequent decision.
The Services are aware of the power of FOIA, and are attempting to push back. For example, in September 2018, the Department of Interior issued a “Guidance for Applying Deliberative Process Privilege in Processing Ecological Services FOIA Requests.” That document references a (non-public) October 20, 2017 Department of Justice Guidance on Administrative Records, and states that “documents reflecting the agency’s pre-decisional deliberative process … generally are not relevant to APA review, and including them in the administrative record would inhibit agency decision-making.” The House Committee on Natural Resources has already inquired about the basis for and application of the Department’s FOIA and administrative records guidance, demonstrating that Agency privilege claims may be subject to increased Congressional scrutiny. The Department of Interior’s proposed new FOIA rules, which attempt to cut back on the scope of FOIA requests, have been roundly criticized by litigants, constitutional and administrative law professors, and Congress alike. They will surely be subject to challenge if promulgated.
Like the Services, EPA takes the position that deliberative materials are not relevant to final decisions and, therefore, the deliberative process privilege analysis under FOIA not relevant to whether a record is complete.However, this position can and should be challenged if material deemed deliberative and excluded from the record actually appears relevant to the Agency’s final decision and/or should have been considered by the Agency. FOIA—especially in the Ninth Circuit after the Sierra Club decision—provides a means to gain documents needed to assert such a challenge.
FOIA is a powerful tool to open interagency consultations and challenge Agency actions. Environmental and industry advocacy groups alike have wielded this tool, with varying success across jurisdictions, to challenge Agency decisions. New cases like Sierra Club provide an opportunity to use FOIA to complete, supplement, and challenge an administrative record in ESA Section 7 consultations.
For more information, please contact Jessica K. Ferrell.
 16 U.S.C. § 1531(c)(1).
 Id. § 1536.
 50 C.F.R. § 402.14(a).
 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a); see generally Sierra Club, 911 F.3d at 973-974.
 See 50 C.F.R. §§ 402.13 – 402.14.
 50 C.F.R. § 402.14(h)(3). “Jeopardy” is defined as an expectation that an action would directly or indirectly reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species. 50 CFR § 402.02.
 16 U.S.C § 1536(b)(3)(A); 50 C.F.R. § 402.14(g)(8), (h)(3).
 See 5 U.S.C. § 706 (delineating the scope of judicial review under the Administrative Procedure Act). Generally, judicial review of Agency actions is solely on the administrative record, which consists of the documents and materials considered by the Agency in reaching its decision. The Agency must show that the action it proposes is reasonable, is supported by “substantial evidence,” and is not “arbitrary and capricious” or in violation of law. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971).
 See U.S. EPA, Administrative Records Guidance (September 2011) at 4-6, explaining that, “the administrative record does not include materials that solely reflect the decision-making process within EPA or within the Executive Branch … As a result, materials containing solely the policy advice, recommendations, or opinions of EPA or other federal government staff that were generated as part of the internal deliberative process for formulating the EPA decision are not generally part of the administrative record.” See also San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1324-26 (D.C. Cir. 1984) (noting weight of precedent and policy favoring exclusion of deliberative documents).
 Cooling Water Intake Structure Coalition et. al. v. U.S. EPA, 905 F.3d 49 (2nd Cir. 2018); see also National Pollutant Discharge Elimination System – Final Regulations To Establish Requirements for Cooling Water Intake Structures as Existing Facilities and Amend Requirements at Phase I Facilities, 79 Fed. Reg. 48300, 48303 (August 15, 2014).
 33 U.S.C. § 1326(b).
See EPAFact Sheet, “Final Regulations to Establish Requirements for Cooling Water Intake Structures at Existing Facilities,” May 2014.
 Cooling Water Intake Structure Coalition, 905 F.3d at 58 – 59; see also79 Fed. Reg. at 48,333.
 79 Fed. Reg. at 48,334.
 40 C.F.R. § 125.94; see generally 40 CFR Parts 122 & 125 (Subparts I, J, & N).
 69 Fed. Reg. 41576 (July 9, 2004).
 Riverkeeper Inc. v. EPA, 475 F.3d 83 (2nd Cir. 2007).
 Entergy Corp v. Riverkeeper Inc., 566 U.S. 208 (2009).
 National Pollutant 76 Fed. Reg. 22,174 (April 20, 2011).
 See Sierra Club, 911 F.3d at 975 (providing detailed history and timeline of events leading up to the FOIA case).
 National Pollutant Discharge Elimination System – Final Regulations To Establish Requirements for Cooling Water Intake Structures as Existing Facilities and Amend Requirements at Phase I Facilities, 79 Fed. Reg. 48300, 48303 (August 15, 2014).
 79 Fed. Reg. at 48,342.
 Cooling Water Intake Structure Coalition et. al. v. EPA, 905 F.3d 49 (2nd Cir. 2018).
 Sierra Club, 911 F.3d at 976.
 Id. (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150–51, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975)).
 Sierra Club, 911 F.3d at 976 -78 (listing the documents at issue in the litigation).
 Id., citing Assembly of Cal. v. U.S. Dept. of Commerce, 968 F.2d 920 (9th Cir. 1992).
 The FOIA Improvement Act of 2016, P.L. No. 114-185, amending 5 U.S.C. § 552.
 Sierra Club, 911 F.3d at 976.
 Id. at 980.
 See Cooling Water Structure Intake Coalition, 905 F.3d at 65, n. 9. (rejecting the challenge to the administrative record based on omission of documents generated by the Services during Section 7 consultation with EPA).
 See, e.g. Citizens for Alternatives to Radioactive Dumping v. U.S. Dep’t of Energy, 485 F.3d 1091, 1097 (10th Cir. 1985) (“… designation of the Administrative Record, like any established administrative procedure, is entitled to a presumption of administrative regularity.”)
 Administrative Conference of the United States, Recommendation on Judicial Review in Informal Rulemaking, June 2013 (stating: “Completion or supplementation of the administrative record for judicial review may be appropriate where a strong showing has been made to overcome the presumption of regularity in compilation. For example, courts have permitted limited discovery on the basis of a “strong showing of bad faith or improper behavior” on the part of the agency decisionmaker.”). https://www.acus.gov/recommendation/administrative-record-informal-rulemaking.
 Endangered Species Act Section 7 Consultation, Programmatic Biological Opinion on the U.S. Environmental Protection Agency’s Issuance and Implementation of the Final Regulations Section 316(b) of the Clean Water Act, May 19, 2014.
 “Guidance for Applying Deliberative Process Privilege in Processing Ecological Services FOIA Requests: Coordination with the October 20, 2017, DOJ Memorandum on Administrative Records,” September 6, 2018.
 Letter from Rep. Grijalva to Sec. Zinke, October 19, 2018.
 Denver Post, “https://www.denverpost.com/2019/01/03/interior-department-public-information-foia/,” January 30, 2019.
 See Wehling, “EPA’s Administrative Records Guidance,” ABA Administrative & Regulatory Law News, Summer 2017.
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