Legal news

A Court-Side Seat: Clean Air, Clean Water, Endangered Species and Deliberative Process Privilege

From Anthony B. Cavender

The federal courts have issued some substantial environmental law rulings in the previous few days.
U.S. Fish and Wildlife Service v. Sierra Club, Inc..
On March 4, 2021, that the court stated that the deliberative process privilege of their Freedom of Information Act shields from disclosure in-house draft governmental biological opinions that are both”predecisional” and deliberative. As stated by the court, those remarks, opining about the Endangered Species Act (ESA) impacts on aquatic species of a planned federal rule impacting cooling water intake structures–that had been promulgated in 2019–are exempt from disclosure since they don’t reflect a”final” agency opinion. Indeed, these ESA-required remarks reflect a preliminary view, and the Services did not treat them like being the final or last term on the job’s desirability. Even the Sierra Club, invoking the FOIA, sought many documents generated by the rulemaking proceedings, and received tens of thousands of pages. On the other hand, the Service failed to release the draft biological opinions that were created in relation to the ESA consultative procedure.
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