## Facts

- EPA proposed regulations in 2011 governing cooling water intake structures under Clean Water Act § 316(b).
- Because the proposal could affect threatened and endangered species, the Endangered Species Act (ESA) required EPA to consult with the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS).
- In ESA § 7 consultations, the Services issue a “biological opinion” stating whether an action is likely to “jeopardize” listed species; a final “jeopardy” opinion triggers defined obligations and responses.
- During consultation in 2012–2013, staff at both Services prepared draft “jeopardy” biological opinions regarding EPA’s then-current proposal.
- Agency decisionmakers did not approve the drafts or transmit them to EPA; they determined further work was needed and extended the consultation.
- In 2014, EPA revised its proposal; the Services then issued a final joint “no jeopardy” biological opinion, and EPA issued its final rule.
- Sierra Club submitted FOIA requests seeking records from the consultation; the Services produced some records but withheld the draft biological opinions and related materials under FOIA Exemption 5’s deliberative process privilege.

## Issues

1. Whether FOIA Exemption 5’s deliberative process privilege protects in-house draft ESA biological opinions that were not approved or transmitted to the action agency and preceded a later final “no jeopardy” opinion.
2. Whether drafts lose Exemption 5 protection because they were the Services’ last written views on an earlier version of the proposed rule or because they influenced the rulemaking process.

## Decision

- The Supreme Court reversed the Ninth Circuit in a 7–2 decision.
- FOIA Exemption 5 protected the draft biological opinions because they were both predecisional and deliberative.
- The drafts were not final agency decisions: they were not approved, were not sent to EPA, and carried no direct legal consequences under the ESA.
- A document is not “final” merely because it was the last document prepared on a particular proposal or because it affected subsequent agency action.
- The Court rejected the Ninth Circuit’s approach treating “practical effects” as sufficient to convert internal drafts into final, disclosable agency opinions.

## Legal Principles

- FOIA Exemption 5 incorporates the deliberative process privilege for documents that are (1) predecisional and (2) deliberative.
- “Predecisional” means generated before the agency’s final decision; “deliberative” means reflecting advisory analyses, recommendations, and internal give-and-take tied to decisionmaking.
- Finality turns on whether the document embodies the agency’s final decision and its reasons, not whether it influenced later actions or was the last word on an abandoned proposal.
- Labels are not controlling; however, where a regulatory scheme assigns legal consequences only to formally issued documents, internally circulated drafts that never leave the agency typically remain predecisional.
- The privilege protects confidential internal deliberations to preserve candid discussion while leaving final agency decisions and their stated rationales subject to disclosure.

## Conclusion

The Court held that in-house draft ESA biological opinions that were never approved or transmitted and had no independent legal effect are protected from FOIA disclosure under Exemption 5 because they are predecisional and deliberative, even if they reflect the agencies’ last views on an earlier version of a proposal.


U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777 (2021)