Environmental Law
Envt'l Law News FALL 2021, VOLUME 30, NUMBER 2
Content
- Inside This Issue
- Inside This Issue
- Ceqa and the Public: Too Long, Didn't Read
- Ceqa and the Public: Too Long, Didn't Read
- Editor's Note
- Editor's Note
- ENVIRONMENTAL LAW SECTION: REFLECTIONS FROM THE 2021 DIVERSITY & INCLUSION FELLOWS
- ENVIRONMENTAL LAW SECTION: REFLECTIONS FROM THE 2021 DIVERSITY & INCLUSION FELLOWS
- Message From the Chair
- Message From the Chair
- Property In the Twenty-first Century:
- Property In the Twenty-first Century:
- Punitives May Come To Those Who Wait
- Punitives May Come To Those Who Wait
- SECTION OFFICERS & EDITORIAL BOARD
- SECTION OFFICERS & EDITORIAL BOARD
- Usfws V. Sierra Club: Expanding the Deliberative Process Privilege
- Usfws V. Sierra Club: Expanding the Deliberative Process Privilege
USFWS V. SIERRA CLUB: EXPANDING THE DELIBERATIVE PROCESS PRIVILEGE
Written by Kathleen Leuschen1
INTRODUCTION
In United States Fish and Wildlife Service v. Sierra Club, Inc.,2 the U.S. Supreme Court held that the deliberative process privilege protected draft documents issued under the federal Endangered Species Act (ESA)3 from disclosure pursuant to the federal Freedom of I nformation Act (FOIA),4 reversing a decision by the Ninth Circuit Court of Appeal. The Supreme Court held that so long as the drafts are "predecisional," representing an agency’s early discussion about how to approach a future decision, then the deliberative process privilege protects them from disclosure. This holding will impact future public requests for information under FOIA, and may impact disclosure under other public records laws, like the California Public Records Act.5 It may also reduce cost and controversy for public agencies. Sierra Club represents the highest court’s underscoring of the importance of the policies underlying the privilege, which are to foster candor and innovation in internal public agency decisionmaking.