Sierra Club, Inc. v. U.S. Fish & Wildlife Serv., 911 F.3d 967 (9th Cir. 2018) (Berg, J.)

Date: 
Saturday, December 22, 2018

Sierra Club, Inc. v. U.S. Fish & Wildlife Serv., 911 F.3d 967 (9th Cir. 2018) (Berg, J.)

Re:  request for records generated during EPA's rule-making process concerning cooling water intake structures

Disposition:  Affirming in part and reversing in part district court's grant of parties' cross-motions for summary judgment

  • Exemption 5, Deliberative Process Privilege:  The Court of Appeals for the Ninth Circuit first finds that certain documents are predecisional because "[one] does not appear to represent the conclusion of the agency . . ., but rather is an interim step" and others "are pre-decisional because they appear to be earlier drafts."  However, the court finds that two documents "represent the final view of the Services" and are not predecisional, and similarly that other documents were not predecisional because they were "largely instructional, and intended to explain best practices for mitigating the projected, harmful effects of the . . . proposed rule."  Second, the court finds that some documents "are final products that reflect the agencies' findings" and are therefore not deliberative.  However, the court finds that other documents are "drafts [that] would shed light on [the agency's] internal vetting process." 

    Circuit Judge Wallace, writing separately and concurring in the result in part and dissenting in part, states that the documents which the court found to be not deliberative "are deliberative because they are 'part of the deliberative process' by which the Services and the EPA consult on those decisions."
Topic: 
Court of Appeals
Exemption 5
Updated February 8, 2019