Court affirms in part, reverses in part Freedom of Information Act case against US Fish and Wildlife Service

By Gabriel Neves | Jan 1, 2019

SAN FRANCISCO — An environmental organization seeking public records regarding proposed rules for cooling water intake structures has suffered a loss in court.

U.S. Appeals Judge Terence Berg, on the bench of the U.S. Court of Appeals for the Ninth Circuit, issued a 37-page ruling on Dec. 21 reversing in part and affirming in part the U.S. District Court for the Northern District of California's decision in a lawsuit filed by Sierra Club Inc. against the U.S. Fish and Wildlife Service and the National Marine Fisheries Service.

The ruling affirmed in part a summary judgment requiring the production of documents containing biological opinions drafted in December 2013 and March 2014, but also reversed the order requiring the production of the December 2013 and April 2014 reasonable and prudent alternative (RPA) documents, as these were protected by non-disclosure provisions of the Freedom of Information Act (FOIA).

As stated in the ruling, "Across the United States, thousands of large industrial facilities, power plants, and other manufacturing and processing complexes draw billions of gallons of water each day from lakes, rivers, estuaries and oceans in order to cool their facilities through cooling water intake structures" that can "harm fish, shellfish, and their eggs by pulling them into the factory’s cooling system; they can injure or kill other aquatic life by generating heat or releasing chemicals during cleaning processes; and they can injure larger fish, reptiles and mammals by trapping them against the intake screens."

Based on those facts, in 2011, the Environmental Protection Agency (EPA) started proposing new regulations regarding water cooling intake structures, aimed at preserving wildlife.

The process of making the rules started in 2012, with an informal consultation process. On Nov. 4, 2013, the Office of Management and Budget (OMB) sent to both fish and wildlife and marine fisheries services a revised version of the rules.

It was agreed between the services and the EPA that the proposal would contain drafted biological opinions.

"After reviewing the November 2013 proposed rule, both Services prepared draft opinions finding that the rule in its then-current form was likely to cause jeopardy for ESA-protected species and negatively impact their designated critical habitats. The Services also proposed RPAs to accompany those jeopardy opinions. At the same time, NMFS discussed whether the jeopardy opinions should be sent to 'the Hill' or OMB, or posted to its docket, which was publicly available at regulations.gov," the ruling stated.

On May 19, 2014, per the ruling, "Services issued a joint final 'no jeopardy' biological opinion regarding the March 2014 final rule," with the agency issuing "the regulation that same day."

Sierra Club filed for a FOIA request in August 2014, but some documents were withheld under FOIA Exemption 5.

On Dec. 21, 2015, Sierra Club filed the suit, contesting the exception.

In his ruling, judge Berg stated that the biological opinion was considered "deliberative," and subject to the exception. The RPA was not considered deliberative.

Judge J. Clifford Wallace concurred in part and dissented in part.

U.S. Court of Appeals for the Ninth Circuit Case number 17-16560

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