United States Fish and Wildlife Serv. v. Sierra Club, Inc.

P R E L I M I N A R Y P R I N T
Volume 592 U. S. Part 2
Pages 261–278
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
March 4, 2021
REBECCA A. WOMELDORF
reporter of decisions
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261
Syllabus
UNITED STATES FISH AND WILDLIFE SERVICE
et
al. v. SIERRA CLUB, INC.
certiorari to the united states court of appeals for
the ninth circuit
No. 19–547. Argued November 2, 2020—Decided March 4, 2021
The Environmental Protection Agency (EPA) proposed a rule in 2011 re-
garding “cooling water intake structures” used to cool industrial equip-
ment. 76 Fed. Reg. 22174. Because aquatic w ildlife can become
trapped in these intake structures and die, the Endangered Species Act
of 1973 required the EPA to consult with the U. S. Fish and Wildlife
Service (FWS) and National Marine Fisheries Service (NMFS) (to-
gether, the Services) before proceeding. Following this required con-
sultation, the Services prepare an offcial “biological opinion” (known as
a “jeopardy” or “no jeopardy” biological opinion) addressing whether
the agency's proposal will jeopardize the existence of threatened or en-
dangered species. 50 CFR § 402.14(h)(1)(iv). Issuance of a “jeopardy”
biological opinion here would require the EPA either to implement cer-
tain alternatives proposed by the Services, to terminate the action alto-
gether, or to seek an exemption. 16 U. S. C. §§ 1536(b)(4), (g), 1538(a).
After consulting with the Services, the EPA made changes to its pro-
posed rule, and the Services received the revised version in November
2013. Staff members at NMFS and FWS soon completed draft biologi-
cal opinions concluding that the November 2013 proposed rule was likely
to jeopardize certain species. Staff members sent these drafts to the
relevant decisionmakers within each agency, but decisionmakers at the
Services neither approved the drafts nor sent them to the EPA. The
Services instead shelved the draft opinions and agreed with the EPA to
extend the period of consultation. After these continued discussions,
the EPA sent the Services a revised proposed rule in March 2014 that
differed signifcantly from the 2013 version. Satisfed that the revised
rule was unlikely to harm any protected species, the Services issued a
joint fnal “no jeopardy” biological opinion. The EPA issued its fnal
rule that same day.
Respondent Sierra Club, an environmental organization, submitted
requests under the Freedom of Information Act (FOIA) for records re-
lated to the Services' consultations with the EPA. As relevant here,
the Services invoked the deliberative process privilege to prevent dis-
closure of the draft biological opinions analyzing the EPA's 2013 pro-
posed rule. The Sierra Club sued to obtain these withheld documents,

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262 UNITED
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SIERRA CLUB, INC.
Syllabus
and the Ninth Circuit held that the draft biological opinions were not
pr
ivileged because even though labeled as drafts, the draft opinions rep-
resented the Services' fnal opinion regarding the EPA's 2013 proposed
rule.
Held: The deliberative process privilege protects from disclosure under
FOIA in-house draft biological opinions that are both predecisional and
deliberative, even if the drafts refect the agencies' last views about a
proposal. Pp. 267–273.
(a) FOIA mandates the disclosure of documents held by a federal
agency unless the documents fall within certain exceptions. 5 U. S. C.
§ 552(b). One of those exceptions, the deliberative process privilege,
shields from disclosure documents refecting advisory opinions and de-
liberations comprising the process by which the Government formulates
decisions and policies. NLRB v. Sears, Roebuck & Co., 421 U. S. 132,
150. The privilege aims to improve agency decisionmaking by encour-
aging candor and blunting the chilling effect that accompanies the pros-
pect of disclosure. The privilege distinguishes between predecisional,
deliberative documents, which are exempt from disclosure, and docu-
ments refecting a fnal agency decision and the reasons supporting it,
which are not. See Renegotiation Bd. v. Grumman Aircraft Engineer-
ing Corp., 421 U. S. 168, 186. A document does not represent an
agency's fnal decision solely because nothing follows it; sometimes a
proposal dies on the vine or languishes. What matters is if the agency
treats the document as its fnal view and concludes the deliberative proc-
ess by which governmental decisions and policies are formulated, giving
the document “real operative effect.” See Sears, 421 U. S., at 150, 160.
Pp. 267–269.
(b) The deliberative process privilege protects the draft biological
opinions from disclosure because they refect a preliminary view—not a
fnal decision—about the EPA's proposed 2013 rule. The administrative
context confrms that the draft opinions were subject to change and
had no direct legal consequences. Because the decisionmakers neither
approved the drafts nor sent them to the EPA, they are best described
not as draft biological opinions but as drafts of draft biological opinions.
While the drafts may have had the practical effect of provoking EPA to
revise its rule, the privilege applies because the Services did not treat
the drafts as fnal. Pp. 269–273.
925 F. 3d 1000, reversed and remanded.
Barrett, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Alito, Kagan, Gorsuch, and Kavanaugh, JJ., joined.

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Opinion of the Court
Breyer, J., fled a dissenting opinion, in which Sotomayor, J., joined, post,
p
. 273.
Matthew Guarnieri argued the cause for petitioners.
With him on the briefs were Solicitor General Francisco,
Acting Solicitor General Wall, Assistant Attorneys General
Hunt and Clark, Deputy Solicitor General Kneedler, Michael
R. Huston, H. Thomas Byron III, and Thomas Pulham.
Sanjay Narayan argued the cause for respondent. With
him on the brief were Elena Saxonhouse, Matthew Miller,
Scott L. Nelson, and Reed Super.*
Justice Barrett delivered the opinion of the Court.
The Freedom of Information Act (FOIA) requires that fed-
eral agencies make records available to the public upon re-
quest, unless those records fall within one of nine exemp-
tions. Exemption 5 incorporates the privileges available to
Government agencies in civil litigation, such as the delibera-
tive process privilege, attorney-client privilege, and attorney
work-product privilege. This case concerns the deliberative
process privilege, which protects from disclosure documents
generated during an agency's deliberations about a policy, as
opposed to documents that embody or explain a policy that
the agency adopts. We must decide whether the privilege
protects in-house drafts that proved to be the agencies' last
word about a proposal's potential threat to endangered spe-
cies. We hold that it does.
*Briefs of amici curiae urging affrmance were fled for the American
Civil Liberties Union et al. by David D. Cole, Brett Max Kaufman, Ashley
Gorski, Patrick C. Toomey, Jennesa Calvo-Friedman, Anne L. Weis-
mann, and Nikhel S. Sus; for the American Forest Resource Council et al.
by Lawson E. Fite, Ellen Steen, Travis Cushman, Amy Chai, Thomas J.
Ward, and Karen R. Harned; for the Center for Biological Diversity et al.
by Eric R. Glitzenstein, Jason Rylander, and Katherine A. Meyer; for the
Electronic Privacy Information Center by Alan Butler; for The Reporters
Committee for Freedom of the Press et al. by Bruce D. Brown; and for
Andrew Rosenberg et al. by Shaun A. Goho.
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Opinion of the Court
I
A
In
April 2011, the Environmental Protection Agency
(EPA) proposed a rule on the design and operation of “cool-
ing water intake structures,” which withdraw large volumes
of water from various sources to cool industrial equipment.
EPA's stated goal was to require industrial facilities to use
“the best technology available” for “minimizing adverse en-
vironmental impact.” 76 Fed. Reg. 22174 (2011). But it
was unclear whether the proposed rule would achieve that
goal, at least when it came to aquatic wildlife. The water
withdrawn by these structures typically contains fsh and
other organisms that can become trapped in the intake sys-
tem and die. If the EPA's rule did not adequately guard
against this risk, it would jeopardize species protected under
the Endangered Species Act of 1973, 87 Stat. 884, 16 U. S. C.
§ 1531 et seq.
When an agency plans to undertake action that might “ad-
versely affect” a protected species, the agency must consult
with the U. S. Fish and Wildlife Service (FWS) and National
Marine Fisheries Service (NMFS) (together, “Services”)
before proceeding. See 16 U. S. C. § 1536(a)(2); 50 CFR
§§ 402.01–402.17 (2019).
1
The goal of the consultation is to
assist the Services in preparing an offcial “biological opin-
ion” on whether the agency's proposal will jeopardize the
continued existence of threatened or endangered species.
§ 402.14(g)(4). These opinions are known as “ `jeopardy' ” or
“ `no jeopardy' ” biological opinions. § 402.14(h)(1)(iv), as
amended, 84 Fed. Reg. 45017 (2019). If the Services con-
clude that the action will cause “jeopardy,” they must pro-
pose “reasonable and prudent alternatives” to the action that
would avoid harming the threatened species. 16 U. S. C.
1
The FWS and NMFS administer the statute on behalf of the Secre-
taries of Interior and Commerce, respectively. See 50 CFR §§ 17.11,
222.101(a), 402.01(b).
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Opinion of the Court
§ 1536(b)(3)(A); 50 CFR § 402.14(h)(2). And if a “jeopardy”
bi
ological opinion is issued, the agency must either implement
the reasonable and prudent alternatives, terminate the action
altogether, or seek an exemption from the Endangered Spe-
cies Committee. 16 U. S. C. §§ 1536(b)(4), (g), 1538(a).
The EPA began informally consulting with the Services
about its proposed regulations on cooling water intake struc-
tures in 2012, see 50 CFR § 402.13, and it requested a formal
consultation in 2013, see § 402.14. Throughout this period,
the Services and the EPA conducted meetings, held confer-
ence calls, and exchanged emails and draft documents on the
proposed rule and its potential effect on endangered species.
As a result of the consultation, the EPA made changes to
its proposed rule, and the Services received the revised ver-
sion in November 2013. Soon after, the Services tentatively
agreed to provide the EPA with draft biological opinions by
December 6, 2013, and fnal opinions by December 20, 2013.
See § 402.14(g)(5) (requiring the Services to provide a “draft
biological opinion” to action agency upon request).
Staff members at NMFS completed a draft biological opin-
ion on December 6, and staff members at FWS completed a
draft on December 9. Both drafts concluded that the pro-
posed rule was likely to jeopardize certain species and identi-
fed possible reasonable and prudent alternatives that the
EPA could pursue. Staff members sent the drafts to the
relevant decisionmakers within each Service and prepared
to circulate them to the EPA.
But decisionmakers at the Services neither approved the
drafts nor sent them to the EPA. Instead, concluding that
“more work needed to be done,” the decisionmakers decided
to continue discussions with the EPA. App. 37, 58–59. The
EPA was still engaged in an internal debate about key ele-
ments of the rule, and the Services wanted a better grasp of
what the EPA proposed to do. So the Services shelved the
draft opinions and agreed with the EPA to extend the period
of consultation.
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Over the next several months, the Services and the EPA
conti
nued to discuss the rule, and in March 2014, the EPA
sent the Services a proposed rule that differed signifcantly
from the 2013 version. Satisfed that the revised rule was
unlikely to harm any protected species, the Services issued
a joint fnal “no jeopardy” biological opinion, thereby termi-
nating the formal consultation. See 50 CFR § 402.14(m)(1),
as amended, 84 Fed. Reg. 45016. The EPA issued its fnal
rule that same day.
B
Sierra Club, an environmental organization, later submit-
ted FOIA requests for records related to the Services'
consultations with the EPA. The Services turned over
thousands of documents, but they invoked the deliberative
process privilege for others—including the draft biological
opinions analyzing the EPA's 2013 proposed rule. The delib-
erative process privilege shields documents that refect an
agency's preliminary thinking about a problem, as opposed
to its fnal decision about it. The Services asserted that as
drafts, the withheld documents were necessarily nonfnal and
therefore protected.
Sierra Club sued the Services in the Northern District of
California, alleging that the withheld documents were sub-
ject to disclosure under FOIA. The District Court agreed
with Sierra Club, and the Ninth Circuit affrmed in part.
925 F. 3d 1000 (2019). As relevant here, it held that the
draft biological opinions were not privileged because even
though they were labeled as drafts, they represented the
Services' fnal opinion that the EPA's 2013 proposed rule was
likely to have an adverse effect on certain endangered spe-
cies.
2
Judge Wallace dissented in part on the ground that
2
The Ninth Circuit also concluded that several other draft documents,
including certain documents meant to accompany the draft biological opin-
ions and a March 2014 draft of reasonable and prudent alternatives, were
not privileged.
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Opinion of the Court
the drafts were part of the ongoing consultation process
rather
than summaries of the Services' fnal views.
We granted certiorari. 589 U. S. ––– (2020).
II
A
FOIA mandates the disclosure of documents held by a fed-
eral agency unless the documents fall within one of nine enu-
merated exemptions. See 5 U. S. C. § 552(b). The ffth of
those exemptions protects “inter-agency or intra-agency
memorandums or letters that would not be available by law
to a party other than an agency in litigation with the
agency.” § 552(b)(5). As the text indicates—albeit in a
less-than-straightforward way—this exemption incorporates
the privileges available to Government agencies in civil liti-
gation. That list includes the deliberative process privilege,
attorney-client privilege, and attorney work-product privi-
lege. See Department of Interior v. Klamath Water Users
Protective Assn., 532 U. S. 1, 8 (2001).
This case concerns the deliberative process privilege,
which is a form of executive privilege. To protect agencies
from being “forced to operate in a fshbowl,” EPA v. Mink,
410 U. S. 73, 87 (1973) (internal quotation marks omitted),
the deliberative process privilege shields from disclosure
“documents refecting advisory opinions, recommendations
and deliberations comprising part of a process by which gov-
ernmental decisions and policies are formulated,” NLRB v.
Sears, Roebuck & Co., 421 U. S. 132, 150 (1975) (internal quo-
tation marks omitted). The privilege is rooted in “the obvi-
ous realization that offcials will not communicate candidly
among themselves if each remark is a potential item of dis-
covery and front page news.” Klamath, 532 U. S., at 8–9.
To encourage candor, which improves agency decision-
making, the privilege blunts the chilling effect that accompa-
nies the prospect of disclosure.
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This rationale does not apply, of course, to documents that
embody
a fnal decision, because once a decision has been
made, the deliberations are done. The privilege therefore
distinguishes between predecisional, deliberative documents,
which are exempt from disclosure, and documents refecting
a fnal agency decision and the reasons supporting it, which
are not. See Renegotiation Bd. v. Grumman Aircraft En-
gineering Corp., 421 U. S. 168, 186 (1975). Documents are
“predecisional” if they were generated before the agency's
fnal decision on the matter, and they are “deliberative” if
they were prepared to help the agency formulate its position.
See Sears, 421 U. S., at 150–152; Grumman, 421 U. S., at 184–
186, 190. There is considerable overlap between these two
prongs because a document cannot be deliberative unless it
is predecisional.
It is not always self-evident whether a document repre-
sents an agency's fnal decision, but one thing is clear: A doc-
ument is not fnal solely because nothing else follows it.
Sometimes a proposal dies on the vine. National Security
Archive v. CIA, 752 F. 3d 460, 463 (CADC 2014) (Kavanaugh,
J.). That happens in deliberations—some ideas are dis-
carded or simply languish. Yet documents discussing such
dead-end ideas can hardly be described as refecting the
agency's chosen course. See Sears, 421 U. S., at 150–151.
What matters, then, is not whether a document is last in line,
but whether it communicates a policy on which the agency
has settled.
To decide whether a document communicates the agency's
settled position, courts must consider whether the agency
treats the document as its fnal view on the matter. See id.,
at 161. When it does so, the deliberative “process by which
governmental decisions and policies are formulated” will
have concluded, and the document will have “real operative
effect.” Id., at 150, 160 (internal quotation marks omitted).
In other words, once cited as the agency's fnal view, the
document refects “the `consummation' of the agency's deci-
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Opinion of the Court
sionmaking process” and not a “merely tentative” position.
See
Bennett v. Spear, 520 U. S. 154, 177–178 (1997) (discuss-
ing fnality in context of obtaining judicial review of agency
action). By contrast, a document that leaves agency deci-
sionmakers “free to change their minds” does not refect the
agency's fnal decision. Grumman, 421 U. S., at 189–190,
and n. 26.
B
The deliberative process privilege protects the draft bio-
logical opinions at issue here because they refect a prelimi-
nary view—not a fnal decision—about the likely effect of the
EPA's proposed rule on endangered species.
3
We start with the obvious point that the Services identi-
fed these documents as “drafts.” A draft is, by defnition,
a preliminary version of a piece of writing subject to feed-
back and change. That is not to say that the label “draft” is
determinative. As we have explained before, a court must
evaluate the documents “in the context of the administrative
process which generated them.” Sears, 421 U. S., at 138.
Here, though, the administrative context confrms that the
drafts are what they sound like: opinions that were subject
to change.
Consider the regulatory process that generates a draft bi-
ological opinion. The governing regulation distinguishes
between draft and fnal biological opinions by separating the
steps at which each is produced. If the Services prepare a
biological opinion, they must “make available” to the action
agency—in this case, the EPA—a “draft” of that opinion and
generally may not issue the fnal opinion “while the draft is
under review'' by the action agency. 50 CFR § 402.14(g)(5).
This provision thus specifcally contemplates further review
by the agency after receipt of the draft, and with it, the
3
Like the parties, we focus on the draft biological opinions. But the
logic applied to these drafts also applies to the other draft documents.
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270 UNITED
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Opinion of the Court
possibility of changes to the biological opinion after the Serv-
ices
send the agency the draft.
4
Consistent with this understanding, the agreement be-
tween the Services and the EPA allowed for the possibility
of postcirculation changes. The Services were scheduled to
provide the EPA with draft copies of the biological opinions
on December 6 and fnal versions by December 20. If the
drafts were to be fnal and immune from change, there would
have been little reason to include a two-week period between
the Services' circulation of the drafts and their submission of
the fnal product. The logical inference is that the Services
expected the EPA to provide comments that they might in-
corporate into the fnal opinion.
Sierra Club contends, though, that while these documents
may have been called “drafts,” they were actually intended
to give the EPA a sneak peek at a conclusion that the Serv-
ices had already reached and were unwilling to change.
And Sierra Club says that the EPA responded accordingly:
Once the EPA knew that a jeopardy opinion was coming, it
revised its proposed rule. Sierra Club insists that the draft
opinions thus had an “operative effect” on the EPA and must
be treated as fnal under our precedent. See Sears, 421
U. S., at 160.
4
Sierra Club contends that the regulations treat a “jeopardy” fnding as
fnal, even though the opinion triggers a discussion of reasonable and pru-
dent alternatives. See 50 CFR § 402.14(g)(5) (requiring the Services to
make a draft biological opinion available “for the purpose of analyzing the
reasonable and prudent alternatives”). As explained below, a criti-
cal question is whether the Services treat a draft opinion as fnal. See
in fra, at 271. So we do not foreclose the possibility that a draft biological
opinion is fnal because, for example, the Services have made clear that
they would not incorporate into that opinion responses made by the action
agency, as to reasonable and prudent alternatives or other matters.
See in fra, at 271–272. We need not resolve that issue because, as we
explain below, the Services' opinions in this case did not count even as
drafts under the regulation—they were merely drafts of draft biological
opinions.

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Opinion of the Court
Sierra Club misunderstands our precedent. While we
have
identifed a decision's “real operative effect” as an indi-
cation of its fnality, that reference is to the legal, not practi-
cal, consequences that fow from an agency's action. Ibid.
(noting that the relevant memorandum has “real operative
effect” because it “permits litigation before the Board”); id.,
at 159, n. 25 (comparing the “operative effect” of the memo-
randum to that of a district court order). In this regulatory
scheme, a fnal biological opinion leads to “direct and appre-
ciable legal consequences” because it alters “the legal regime
to which the action agency is subject, authorizing it” to take
action affecting an endangered species “if (but only if ) it
complies with the prescribed conditions.” Bennett, 520
U. S., at 178. That is not true of a draft biological opinion.
To be sure, a draft biological opinion might carry a practi-
cal consequence if it prompts the action agency to change
its proposed rule. For example, the agency might adopt an
alternative approach that avoids jeopardizing an endangered
species. But many documents short of a draft biological
opinion could prompt an agency to alter its rule. An agency
might make changes in response to the Services' views—or,
for that matter, the views of the agency's own offcials—at
any stage of the consultation process. And even Sierra Club
does not contend that any email or memorandum that has
the effect of changing an agency's course constitutes a fnal
administrative decision. That approach would gut the delib-
erative process privilege.
Sierra Club's proposed effects-based test is therefore not
the right one. To determine whether the privilege applies,
we must evaluate not whether the drafts provoked a re-
sponse from the EPA but whether the Services treated them
as fnal.
They did not. The drafts were prepared by lower-level
staff and sent to the Services' decisionmakers for approval.
Sierra Club characterizes the drafts as polished documents
lacking only an autopen signature. But the determinative
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fact is not their level of polish—it is that the decisionmakers
at
the Services neither approved the drafts nor sent them to
the EPA. Instead, the decisionmakers concluded that “more
work needed to be done” and extended the time for consulta-
tion with the EPA. These documents, then, are best de-
scribed not as draft biological opinions but as drafts of draft
biological opinions. Sierra Club's argument thus fails on its
own terms: Even assuming that a draft biological opinion
would have expressed the Services' settled conclusion, a
draft of a draft is a far cry from an “agency decision already
made.” Grumman, 421 U. S., at 184.
It is true, as Sierra Club emphasizes, that the staff recom-
mendations proved to be the last word within the Services
about the 2013 version of the EPA's proposed rule. But that
does not change our analysis. The recommendations were
not last because they were fnal; they were last because
they died on the vine. See Sears, 421 U. S., at 151, n. 18
(“[C]ourts should be wary of interfering ” with drafts that
“do not ripen into agency decisions”). Further consultation
with the Services prompted the EPA to alter key features
of its 2013 proposal, so there was never a need for the Serv-
ices to render a defnitive judgment about it. The opinion
that came to fruition was the Services' joint “no jeopardy”
opinion about the 2014 version of the EPA's proposed rule.
The staff recommendations were thus part of a deliberative
process that worked as it should have: The Services and the
EPA consulted about how the rule would affect aquatic wild-
life until the EPA settled on an approach that would not
jeopardize any protected species.
Sierra Club warns that ruling against it here would permit
the Services to stamp every document “draft,” thereby pro-
tecting even fnal agency decisions and creating “ `secret
[agency] law.' ” Id., at 153. It is true that a draft document
will typically be predecisional because, as we said earlier,
calling something a draft communicates that it is not yet
fnal. But determining whether an agency's position is fnal
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Breyer, J., dissenting
for purposes of the deliberative process privilege is a func-
ti
onal rather than formal inquiry. If the evidence estab-
lishes that an agency has hidden a functionally fnal decision
in draft form, the deliberative process privilege will not
apply. The Services, however, did not engage in such a
charade here.
***
The deliberative process privilege protects the draft bio-
logical opinions from disclosure because they are both prede-
cisional and deliberative. We reverse the contrary judg-
ment of the Court of Appeals and remand the case for
further proceedings consistent with this opinion.
5
It is so ordered.
Justice Breyer, with whom Justice Sotomayor joins,
dissenting.
Because the word “draft” may here prove misleading, it
should help the reader understand my argument if he or she
keeps in mind three different but related kinds of documents:
“Final Biological Opinions,” “Draft Biological Opinions,” and
“Drafts of Draft Biological Opinions.” A Final Biological
Opinion, as its name suggests, embodies a fnal agency deci-
sion, for example, a decision by the Services that a proposed
Environmental Protection Agency (EPA) action will jeopar-
dize an endangered species. We all agree, I believe, that a
Final Biological Opinion is not deliberative and that Exemp-
tion 5 of the Freedom of Information Act (FOIA) does not
protect it from disclosure. I also agree with the Court
about the third kind of document, a Draft of a Draft Biologi-
5
We agree with the parties that the District Court must determine on
remand whether any parts of the documents at issue are segregable. See
5 U. S. C. § 552(b) (Agencies must disclose “[a]ny reasonably segregable
por ti on” of a document cont ai ni ng some exempt i nfor mati on);
§ 552(a)(4)(B); NLRB v. Sears Roebuck & Co., 421 U. S. 132, 161, n. 27
(1975).
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cal Opinion. That kind of document normally is not fnal.
It
normally is deliberative. And Exemption 5 normally pro-
tects it from disclosure.
But what about the second kind of document, a Draft Bio-
logical Opinion? Does it normally set forth a “fnal” Serv-
ices view, or is it normally a “deliberative” document? I
agree with the Court that whether a document is “fnal”
or “deliberative” primarily depends upon its “function[ ]”
within an agency's decision-making process. Ante, at 273;
see also NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 138
(1975) (“[T]he function of the documents” and “the context
of the administrative process which generated them” is
“[c]rucial” to understanding whether the deliberative proc-
ess privilege applies). I believe that, in the context before
us, the Services' Draft Biological Opinions refect “fnal” de-
cisions regarding the “jeopardy” the EPA's then-proposed
actions would have caused. Hence, they would normally fall
outside, not within, Exemption 5.
Five features of the Draft Biological Opinion lead me to
this conclusion. First, literally speaking, a Draft Biological
Opinion is a “fnal” document with respect to its content.
That is in fact the key difference between a Draft Biological
Opinion and a Draft of a Draft Biological Opinion. If fur-
ther deliberation about the draft's content is likely, the docu-
ment is not a Draft Biological Opinion. It is a Draft of a
Draft. I recognize that in principle a Service might change
its mind about the content of even the most fnal of Draft
Biological Opinions. It might then prepare a new Draft Bi-
ological Opinion. But, in principle, a Service could also
change its mind about a Final Biological Opinion, withdraw-
ing a Final Biological Opinion already issued and substitut-
ing a new one in its place. See, e. g., Oregon Natural Re-
sources Council v. Allen, 476 F. 3d 1031, 1032 (CA9 2007)
(Fish and Wildlife Service “voluntarily reinitiated consulta-
tion . . . [and] withdrew its favorable Biological Opinion”);
see also 50 CFR § 402.16 (2019) (requiring the Services to
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reinitiate consultation in specifed circumstances, including
when
“new information reveals effects of the action that may
affect listed species or critical habitat in a manner or to an
extent not previously considered”). The mere possibility of
a future change does not alter the fnality, or the fnal effect,
of the original document.
Second, a Final Biological Opinion and a Draft Biological
Opinion fnding jeopardy serve the same functions within the
formal administrative process. Both explain the Services'
fndings. Both set forth “reasonable and prudent” modif-
cations or alternatives. 16 U. S. C. § 1536(b)(3)(A). And
both have substantially the same effect on the EPA (the ac-
tion agency in this case). In response to both documents,
the EPA has essentially four options: It can drop the pro-
posed action; it can accept the proposed modifcations; it can
take the proposed action and potentially expose itself to con-
siderable penalties; or it can seek a Cabinet-level exemption.
See National Assn. of Home Builders v. Defenders of
Wildlife, 551 U. S. 644, 652 (2007); see also §§ 1536(b)(4), (g);
50 CFR § 402.15; U. S. Fish and Wildlife Service, Consulta-
tions | Frequently Asked Questions (June 10, 2020), https://
www.fws.gov/endangered/what-we-do/faq.html. The EPA
could also, of course, propose a new course of action embody-
ing modifcations not proposed by the Services—possibly
generating a new consultation—but that is just as true of a
Final Biological Opinion. See ibid. (noting that an agency
can always choose to alter its proposed action).
A Draft Biological Opinion differs from a Final Biological
Opinion in only one way that matters. The Services must
make the Draft Biological Opinion available to the EPA
before it issues a Fi na l Bi olog ica l Opi ni on. 50 CFR
§ 402.14(g)(5). It then continues its consultation with the
EPA but not with an eye toward changing the Services' envi-
ronmental analysis or conclusions. Rather, the negotiations
are designed to fnd less damaging alternatives to the origi-
nal EPA-proposed action. See ibid. (allowing the action
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agency to request the Draft Biological Opinion “for the pur-
pose
of analyzing the reasonable and prudent alternatives”).
If the agencies fnd suitable alternatives, the EPA will then
publicly adopt those alternatives, and the process will culmi-
nate in a Final Biological Opinion fnding no jeopardy.
The function of a Draft Biological Opinion fnding jeopardy
then is much the same as that of a Final Biological Opinion
fnding jeopardy. Transmitting the Draft Biological Opinion
to the EPA simply allows the EPA to make its choice before
a Final Biological Opinion issues. See ibid.
Third, agency practice shows that the Draft Biological
Opinion, not the Final Biological Opinion, is the document
that informs the EPA of the Services' conclusions about jeop-
ardy and alternatives and triggers within the EPA the proc-
ess of deciding what to do about those conclusions. Amici
tell us without contradiction that “out of 6,829 formal consul-
tations” between 2008 and 2015, the Fish and Wildlife Serv-
ice “issued a [Final Biological Opinion fnding] jeopardy”
“only twice.” Brief for Center for Biological Diversity et al.
as Amici Curiae 22–23. If a Final Biological Opinion is dis-
coverable under FOIA, as all seem to agree it is, why would
a Draft Biological Opinion, embodying the same Service con-
clusions (and leaving the EPA with the same four choices),
not be?
Fourth, permitting discovery of Draft Biological Opinions
under FOIA is unlikely to chill frank discussion within a
Service because the Services' staff are already aware that
these Drafts may well be made public. And for good reason.
When a private party prompts the agency action under re-
view, say, by seeking an EPA permit, regulations require the
Service to make the Draft Biological Opinion available to the
private applicant, removing the Draft Biological Opinion
from Exemption 5's protection. See 50 CFR § 402.14(g)(5)
(requiring disclosure of Draft Biological Opinions to private
applicants if requested); see also Department of Interior v.
Klamath Water Users Protective Assn., 532 U. S. 1, 4–5
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Breyer, J., dissenting
(2001) (documents exchanged between agency and third
par
ty not covered by Exemption 5 because they are no
longer inter-agency or intra-agency communications). To
hold that Draft Biological Opinions are discoverable when a
private party seeks an EPA permit but not when, as here,
the EPA seeks to write a generally applicable rule that gov-
erns private party conduct seems highly anomalous.
Even where there is no private applicant, the evaluating
agencies have a long history of disclosing Draft Biological
Opinions to the public. See, e. g., App. 93–98, 102–104 (dis-
cussing timing of Draft Biological Opinion disclosure); see
also id., at 93–98 (discussing roll-out plan and public talking
points for Draft Biological Opinion); Supp. Record in No. 17–
16560 (CA9), pp. 164–199 (citing additional examples of public
disclosure of Draft Biological Opinions); L. Schiffer, National
Oceanic and Atmospheric Admin., Guidelines for Compiling
an Agency Administrative Record 10 (Dec. 21, 2012), https://
www.gc.noaa.gov/documents/2012/AR_Guidelines_122112-
Final.pdf (“Final draft documents with independent legal
signifcance, such as fnal draft environmental impact state-
ments, . . . will not be fagged for potential listing on the
agency's Privilege Log ” (emphasis in original)). The EPA
too may well release a Service's Draft Biological Opinion.
See App. 96 (“EPA [Offce of Water] has a track record of
putting these drafts on their docket which then show up on
regulations.gov”); see also id., at 95 (“I agree that it is likely
that EPA will put this draft on their docket”).
Fifth, legal consequences fow from the Services' comple-
tion of a Draft Biological Opinion. The Services' regula-
tions state that “[i]f requested, the Service shall make avail-
able to the Federal agency [i. e., the EPA] the draft biological
opinion for the purpose of analyzing the reasonable and pru-
dent alternatives.” 50 CFR § 402.14(g)(5). Once the Draft
Biological Opinion is under review at the EPA, the Services
may not issue a Final Biological Opinion prior to the speci-
fed deadline. Ibid. Moreover, as explained, Draft Biologi-
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cal Opinions, like Final Biological Opinions, limit the EPA's
set
of available options. Cf. Bennett v. Spear, 520 U. S. 154,
178 (1997) (holding that a Final Biological Opinion has “legal
consequences,” even though the action agency is not legally
obligated to accept the opinion's recommendations or conclu-
sions, because the opinion “alter[s] the legal regime to which
the action agency is subject”). Why, then, would these same
consequences (together with the other factors mentioned
above) not also place Draft Biological Opinions outside
Exemption 5's protection?
In sum, the likely fnality of a Draft Biological Opinion, its
similarity to a Final Biological Opinion, the similar purposes
it serves, the agency's actual practice, the anomaly that
would otherwise exist depending upon the presence or ab-
sence of a private party, and the presence of at least some
regulation-based legal constraints—convince me that a Draft
Biological Opinion would not normally enjoy a deliberative
privilege from FOIA disclosure.
The question remains whether the particular documents
at issue here are Draft Biological Opinions or Drafts of Draft
Biological Opinions. As the majority points out, there are
reasons to believe some of them may be the latter. See
ante, at 270, n. 4, 271. The National Marine Fisheries Serv-
ice's documents contain highlighting and editing marks re-
fective of a work-in-progress. But the Fish and Wildlife
Service documents do not, and the record indicates they may
have been complete but for a fnal signature. See App. 105.
Given the fact-intensive nature of this question, I would re-
mand to allow the Court of Appeals to determine just how
much work was left to be done. If the court determines
that the documents are merely Drafts of Draft Biological
Opinions, I agree with the majority that a segregability
analysis would be appropriate.
For these reasons, with respect, I dissent.
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