Amy Coney Barrett Makes a Decision. It Ain’t Great

The first opinion authored by Supreme Court Justice Amy Coney Barrett is out, and it is predictably not great.

No, it’s not about abortion, though well over a dozen cases are in the federal appellate court pipeline and could reach the Supreme Court soon, and Barrett was clearly put on the Court to end legal abortion. This case is about the federal Freedom of Information Act (FOIA), and Barrett jumped at the chance to make it harder for people to get information about what the government does.

The case, which was brought by the Sierra Club, turns on something known as the “deliberative process privilege” exception to FOIA. FOIA is truly one of the cornerstones of American democracy, with the Supreme Court saying the basic purpose of the law is to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”

There are many exceptions to FOIA, however, so much so that the Department of Justice maintains a hefty treatise on the topic. There are exemptions for material that implicates national security, information about internal personnel rules, certain trade secrets, and more.

Broadly speaking, the deliberative process privilege allows the government to withhold some underlying agency discussions undertaken before a policy is finalized. There are some good reasons for that. The exemption protects some discussions so that people in an agency, particularly lower-level employees, can speak freely. It also prevents against disclosure-of-policy reasons that didn’t ultimately prevail when a rule is made.

However, that exemption is in tension with another requirement of FOIA: that the government must disclose the underlying reasons for the basis of a policy that an agency actually adopts. Agency regulations don’t just appear out of thin air, and the public gets to understand what underpinned the creation of the rule.

Moreover, this particular exemption is also one of the most abused. The Reporters Committee for Freedom of the Press explains that “it has become known as the ‘withhold it because you want to’ privilege” that the government uses to avoid disclosing things that are “embarrassing or politically inconvenient.”

Here’s where the Sierra Club’s lawsuit came in. In 2014, the Environmental Protection Agency promulgated a rule about “cooling water intake structures,” which are used to cool industrial equipment. Aquatic wildlife can get trapped in these and die. Concerned about this, the Sierra Club made a FOIA request for some information about the EPA’s discussions with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service over the proposed rule.

The EPA provided a number of documents, but withheld “draft biological opinions” from the Services to the EPA about the proposed rule. A biological opinion is an assessment from the Services explaining what risk there is to wildlife species and recommendations for what steps the EPA should take to mitigate the risk were the rule to be put into effect. It’s a critical document for understanding how wildlife would be jeopardized and whether the EPA took the threat seriously.

In this instance, the government asserted they didn’t need to provide these opinions because since they were drafts, they weren’t final opinions of the Services and were therefore covered by the deliberative process exemption.

However, as Justice Stephen Breyer noted in his dissent, the term “draft biological opinion” is something of a misnomer. The draft biological opinion is what the Services send to the EPA about their conclusions regarding jeopardy to wildlife and alternatives the EPA could pursue. It therefore represents the decision-making of the Services—and a step in the decision-making of the EPA—and should be available to the public.

Indeed, as Breyer points out, if a private party was seeking an EPA permit related to the opinion, the Services have to give the draft biological opinion to that private applicant. That’s an absurd result—you can get this if you’re a private party that wants to do some business, but you can’t get it if you’re a reporter or an environmentalist or just an interested party.

No matter, says Amy Coney Barrett. Instead of recognizing that the public needs to understand each step of our government’s decision-making process, she magically clung to the word “draft” to say that the biological opinions at issue reflect a preliminary view and not a final decision and therefore are “predecisional” and protected. She even agreed with the Sierra Club that the recommendations from the Services were the “last word” about a version of the EPA rule, but that doesn’t matter. As the Sierra Club put it in their brief to the Supreme Court, Barrett’s view grants agencies the ability to withhold information simply by how they characterize it. Label it a draft, and it’s secret forever.

Not a single group backed the government’s position here. Every amicus brief that was filed with the Supreme Court supported the Sierra Club’s stance that greater transparency is needed.

Rather than acknowledge that need, Barrett’s decision here lays down a marker that she doesn’t believe people should have maximal access to what their government does. Making government more opaque was a hallmark of the Trump administration, so it’s not really a surprise Barrett would think it’s fine. The Sunlight Foundation, a now-defunct organization that tracked government transparency before and during the Trump years, said that his administration “consistently shadowed the public’s right to know, online and off—unless that transparency was used against its political opponents or to attempt to cast doubt on the legitimacy of the investigation into his campaign. Thanks to Barrett’s opinion, the government is now free to call a whole multitude of documents “predecisional” and withhold them, even when they’re actually the “last word” about something,

This decision is broadly applicable, and broadly terrible, but it’s terrible for environmental groups in a highly specific way. That’s because environmental decision-making is complex and involves multiple government entities and multiple steps. Much of what is contained in the biological opinions are simply statements of fact—how depleted an endangered species is, for example. But, as the Center for Biological Diversity said in its amicus brief, that information wouldn’t be available to the public—ever—if it doesn’t make it into the final biological opinion for whatever reason.

Once the public doesn’t have that data, they can’t understand whether the EPA and the Services are ensuring their actions do not “jeopardize the continued existence of any endangered species or threatened species.”

In environmental decision-making, the consequences are so great: Get the decision wrong and species can go extinct. No subsequent rule can unwind that, but thanks to Amy Coney Barrett, that’s exactly what could happen.