Old File:
19-547.pdf
20 pages (131 KB) 3/2/2021 5:06:39 PM



### Total Changes 

# 4 3/9/2021 8:56:30 AM 

# Compare Results

versus



### Content 

# 4 Replacements 

# 0 Insertions 

# 0 Deletions New File:
19-547_new.pdf
20 pages (131 KB) 3/9/2021 8:55:27 AM



### Styling and Annotations 

# 0 Styling 

# 0 Annotations

Go to First Change (page 5)

file://NoURLProvided[3/9/2021 8:56:30 AM]1 (Slip Opinion) OCTOBER TERM, 2020

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

## SUPREME COURT OF THE UNITED STATES

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 structur es” used to cool industrial equip

ment. 76 Fed. Reg. 22174. Because aquatic wildlife 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 Wild

life Service (FWS) and National Marine Fisheries Service (NMFS) (to

gether, the Services) before proceeding. Following this required con

sultation, the Services prepare an official “biological opinion” (known as a “jeopardy” or “no jeopardy” biol ogical 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 requir e the EPA either to implement cer

tain alternatives proposed by the Se rvices, to terminate the action al

together, 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 biolog

ical 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 dr aft opinions and agreed with the EPA to extend the period of consultation. After these continued dis

cussions, the EPA sent th e Services a revised proposed rule in March 2014 that differed significantly from the 2013 version. Satisfied that the revised rule was unlikely to harm any protected species, the Ser

vices issued a joint final “no jeopar dy” biological opinion. The EPA2 UNITED STATES FISH AND WILDLIFE SERV. v. SIERRA CLUB, INC. Syllabus
issued its final rule that same day.

Respondent Sierra Club, an en vironmental 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, and the Ninth Circuit held that the draft biological opinions were not privileged because even though labe led as drafts, the draft opinions represented the Services’ final opinion regarding the EPA’s 2013 pro

posed rule.
Held : The deliberative process privilege protects fr om disclosure under

FOIA in-house draft biol ogical opinions that are both predecisional and deliberative, even if the drafts reflect the agencies’ last views about a proposal. Pp. 5–11.

(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 reflecting advisory opinions and de

liberations comprising the process by which the Government formu

lates decisions and policies. NLRB v. Sears, Roebuck & Co. , 421 U. S. 132, 150. The privilege aims to improve agency decisionmaking by en

couraging candor and blunting the ch illing effect that accompanies the prospect of disclosure. The priv ilege distinguishes between predeci

sional, deliberative documents, whic h are exempt from disclosure, and documents reflecting a final agency decision and the reasons support

ing it, which are not. See Renegotiation Bd . v. Grumman Aircraft En

gineering Corp. , 421 U. S. 168, 186. A document does not represent an agency’s final decision solely beca use nothing follows it; sometimes a proposal dies on the vine or languish es. What matters is if the agency treats the document as its final view and concludes the deliberative process by which governmental decisions and policies are formulated, giving the document “real operative effect.” See Sears , 421 U. S., at 150, 160. Pp. 5–7.

(b) The deliberative pr ocess privilege protects the draft biological opinions from disclosure because th ey reflect a preliminary view—not a final decision—about the EPA’s proposed 2013 rule. The adminis

trative context confirms that the draf t opinions were subject to change and had no direct legal consequenc es. 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 biologi

cal opinions. While the drafts may ha ve had the practical effect of pro

voking EPA to revise its rule, the privilege applies because the Ser

vices did not treat the drafts as final. Pp. 7–11.3 Cite as: 592 U. S. ____ (2021)

Syllabus

925 F. 3d 1000, reversed and remanded.

B ARRETT , J., delivered the opinion of the Court, in which R OBERTS , C. J., and T HOMAS , A LITO , K AGAN , G ORSUCH , and K AVANAUGH , JJ., joined. B REYER , J., filed a dissenting opinion, in which S OTOMAYOR , J., joined._________________

_________________ 1 Cite as: 592 U. S. ____ (2021)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other form al errors, in order that corrections may be made before the preliminary print goes to press. 

## SUPREME COURT OF THE UNITED STATES

No. 19–547

UNITED STATES FISH AND WILDLIFE SERVICE,
ET AL ., PETITIONERS v. SIERRA CLUB, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[March 4, 2021]

J USTICE B ARRETT delivered the opinion of the Court. The Freedom of Information Act (FOIA) requires that federal agencies make records available to the public upon request, unless those records fall within one of nine exemp

tions. Exemption 5 incorporates the privileges available to Government agencies in civil lit igation, such as the deliber

ative process privilege, attorn ey-client privilege, and attor

ney work-product privilege. This case concerns the deliber

ative process privilege, which protects from disclosure documents generated during an agency’s deliberations about a policy, as opposed to documents that embody or ex

plain 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 species. We hold that it does.

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 vol

-2 UNITED STATES FISH AND WILDLIFE SERV. v. SIERRA CLUB, INC. Opinion of the Court umes of water from various sources to cool industrial equip

ment. EPA’s stated goal was to require industrial facilities to use “the best technology av ailable” for “minimizing ad

verse environmental 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 fish and other organisms that can become trapped in the intake system and die. If the EPA’s rule did not adequately guard against this risk, it would jeopardize species protected un

der 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 “adversely affect” a protected species, the agency must con

sult with the U. S. Fish and Wildlife Service (FWS) and Na

tional Marine Fisheries Service (NMFS) (together, “Ser

vices”) 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 official “biological opinion” on whether the agency’s proposal will jeopardize the continued existence of th reatened or endangered spe

cies. §402.14(g)(4). These opinions are known as “ ‘jeop

ardy’ ” or “ ‘no jeopardy’ ” biological opinions. §402.14(h)(1)(iv), as amended, 84 Fed. Reg. 45017 (2019). If the Services conclude that th e action will cause “jeopardy,” they must propose “reasonable and prudent alternatives” to the action that would avoid harming the threatened spe

cies. 16 U. S. C. §1536(b)(3)(A); 50 CFR §402.14(h)(2). And if a “jeopardy” biological opinion is issued, the agency must either implement the reasonable and prudent alter

natives, terminate the action altogether, or seek an exemp

tion from the Endangered Species Committee. 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).3 Cite as: 592 U. S. ____ (2021)

Opinion of the Court §§1536(b)(4), (g), 1538(a). The EPA began informally consulting with the Services about its proposed regulations on cooling water intake structures 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 conference calls, and exchanged emails and draft docu

ments on the proposed rule and its potential effect on en

dangered 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 final 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 opinion on December 6, and staff members at FWS com

pleted a draft on December 9. Both drafts concluded that the proposed rule was likely to jeopardize certain species and identified possible reasonable and prudent alternatives that the EPA could pursue. Staff members sent the drafts to the relevant decisionmakers within each Service and pre

pared 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 pe

riod of consultation. Over the next several months, the Services and the EPA continued to discuss the rule, and in March 2014, the EPA sent the Services a proposed rule that differed significantly4 UNITED STATES FISH AND WILDLIFE SERV. v. SIERRA CLUB, INC. Opinion of the Court

from the 2013 version. Satisfied that the revised rule was unlikely to harm any protected species, the Services issued a joint final “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 final rule that same day.

B Sierra Club, an environmental organization, later sub

mitted FOIA requests for record s related to the Services’ consultations with the EPA. The Services turned over thou

sands of documents, but they invoked the deliberative pro

cess privilege for others—inclu ding the draft biological opinions analyzing the EPA’s 2013 proposed rule. The de

liberative process privilege sh ields documents that reflect an agency’s preliminary thinking about a problem, as op

posed to its final decision about it. The Services asserted that as drafts, the withheld documents were necessarily nonfinal 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 affirmed 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’ final opinion that the EPA’s 2013 proposed rule was likely to have an adverse effect on certain endangered species. 2 Judge Wallace dissented in part on the ground that the drafts were part of the ongoing consultation pro

cess rather than summaries of the Services’ final views. We granted certiorari. 589 U. S. ___ (2020).

——————

2 The Ninth Circuit also concluded th at several other draft documents, including certain documents meant to accompany the draft biological opinions and a March 2014 draft of reasonable and prudent alternatives, were not privileged.5 Cite as: 592 U. S. ____ (2021)

Opinion of the Court

II A FOIA mandates the disclosure of documents held by a federal agency unless the documents fall within one of nine enumerated exemptions. See 5 U. S. C. §552(b). The fifth 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 theagency.” §552(b)(5). As the text indicates—albeit in a lessthan-straightforward way—this exemption incorporates the privileges available to Government agencies in civil lit

igation. That list includes the deliberative process privi

lege, attorney-client privilege , and attorney work-product privilege. See Department of Interior v. Klamath Water Us

ers Protective Assn. , 532 U. S. 1, 8 (2001). This case concerns the de liberative process privilege, which is a form of executive pr ivilege. To protect agencies from being “forced to operate in a fishbowl,” EPA v. Mink

, 410 U. S. 73, 87 (1973) (internal quotation marks omitted), the deliberative process privile ge shields from disclosure “documents reflecting adviso ry opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated,” NLRB v. Sears

, Roebuck & Co. , 421 U. S. 132, 150 (1975) (internal quotation marks omitte d). The privilege is rooted in “the obvious realization that officials will not communi

cate candidly among themselves if each remark is a poten

tial item of discovery and front page news.” Klamath , 532 U. S., at 8–9. To encourage candor, which improves agency decisionmaking, the privilege blunts the chilling effect that accompanies the prospect of disclosure. This rationale does not apply, of course, to documents that embody a final decision, because once a decision has been made, the deliberations are done. The privilege there

fore distinguishes between pr edecisional, deliberative doc

uments, which are exempt from disclosure, and documents6 UNITED STATES FISH AND WILDLIFE SERV. v. SIERRA CLUB, INC. Opinion of the Court reflecting a final agency decision and the reasons support

ing it, which are not. See Renegotiation Bd. v. Grumman Aircraft Engineering Corp. , 421 U. S. 168, 186 (1975). Doc

uments are “predecisional” if they were generated before the agency’s final decision on the matter, and they are “de

liberative” if they were prepar ed to help the agency formu

late its position. See Sears , 421 U. S., at 150–152; Grum

man , 421 U. S., at 184–186, 190. There is considerable overlap between these two prongs because a document can

not be deliberative unless it is predecisional. It is not always self-evide nt whether a document repre

sents an agency’s final decision, but one thing is clear: A document is not final solely be cause nothing else follows it. Sometimes a proposal dies on the vine. National Security Archive v. CIA , 752 F. 3d 460, 463 (CADC 2014) (Ka

vanaugh, J.). That happens in deliberations—some ideas are discarded or simply languish. Yet documents discuss

ing such dead-end ideas can har dly be described as reflect

ing 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, cou rts must consider whether the agency treats the document as its final view on the matter. See id. , at 161. When it does so, the deliberative “process by which governmental decisions and policies are formu

lated” 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 final view, the document reflects “the ‘consummation’ of the agency’s decisionmaking process” and not a “merely tenta

tive” position. See Bennett v. Spear , 520 U. S. 154, 177–178 (1997) (discussing finality in context of obtaining judicial review of agency action). By contrast, a document that leaves agency decisionmakers “free to change their minds”7 Cite as: 592 U. S. ____ (2021)

Opinion of the Court does not reflect the agency’s final decision. Grumman , 421 U. S., at 189–190, and n. 26.

B The deliberative process priv ilege protects the draft bio

logical opinions at issue here because they reflect a prelim

inary view—not a final 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

fied these documents as “drafts.” A draft is, by definition, a preliminary version of a piece of writing subject to feedback and change. That is not to say that the label “draft” is de

terminative. As we have explained before, a court must evaluate the documents “in the context of the administra

tive process which generated them.” Sears , 421 U. S., at 138. Here, though, the administrative context confirms 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 final biological opinions by separating the steps at which each is prod uced. If the Services prepare a biological opinion, they must “make available” to the ac

tion agency—in this case, the EPA—a “draft” of that opin

ion and generally may not issue the final opinion “while the draft is under review’’ by the action agency. 50 CFR §402.14(g)(5). This provision t hus specifically contemplates further review by the agency after receipt of the draft, and with it, the possibility of changes to the biological opinion afterthe Services send the agency the draft. 4

——————

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.

4 Sierra Club contends that the regulations treat a “jeopardy” finding as final, even th ough the opinion triggers a discussion of reasonable and prudent alternatives. See 50 CFR §4 02.14(g)(5) (requiring the Services8 UNITED STATES FISH AND WILDLIFE SERV. v. SIERRA CLUB, INC. Opinion of the Court 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 final versions by December 20. If the drafts were to be final 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 final product. The logical inference is that the Services expected the EPA to provide comments that they might incorporate into the final opinion. Sierra Club contends, though, that while these docu

ments may have been called “drafts,” they were actually in

tended to give the EPA a sneak peek at a conclusion that the Services had already reached and were unwilling to change. And Sierra Club says that the EPA responded ac

cordingly: 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 final under our precedent. See Sears , 421 U. S., at 160. Sierra Club misunderstands our precedent. While we have identified a decision’s “real operative effect” as an in

dication of its finality, that reference is to the legal, not practical, consequences that flow from an agency’s action.

—————— to make a draft biological opinion available “for the purpose of analyzing the reasonable and prudent alternatives”). As explained below, a critical question is whether the Services tr eat a draft opinion as final. See infra

, at 9. So we do not foreclose the possibility that a draft biological opinion is final because, for example, the Se rvices have made clear that they would not incorporate into that opin ion responses made by the action agency, as to reasonable and prudent alternatives or other matters. See infra , at 9–10. 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 opin

ions.9 Cite as: 592 U. S. ____ (2021)

Opinion of the Court

Ibid. (noting that the relevant memorandum has “real op

erative effect” because it “permits litigation before the Board”); id. , at 159, n. 25 (comparing the “operative effect” of the memorandum to that of a district court order). In this regulatory scheme, a final biological opinion leads to “direct and appreciable legal consequences” because it alters “the legal regime to which the action agency is subject, author

izing 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 bio

logical opinion. To be sure, a draft biological opinion might carry a prac

tical consequence if it prompts the action agency to change its proposed rule. For exampl e, the agency might adopt an alternative approach that av oids jeopardizing an endan

gered species. But many documents short of a draft biolog

ical opinion could prompt an agency to alter its rule. An agency might make changes in response to the Services’ views—or, for that matter, th e views of the agency’s own officials—at any stage of the consultation process. And even Sierra Club does not contend that any email or mem

orandum that has the effect of changing an agency’s course constitutes a final administrative decision. That approach would gut the deliberative 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 final. 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 fact is not their level of polish—it is that the decisionmak

ers at the Services neither approved the drafts nor sent them to the EPA. Instead, the decisionmakers concluded10 UNITED STATES FISH AND WILDLIFE SERV. v. SIERRA CLUB, INC. Opinion of the Court

that “more work needed to be done” and extended the time for consultation with the EPA. These documents, then, are best described not as draft biological opinions but as drafts of draft biological opinions. Sierra Club’s argument thus fails on its own terms: Even a ssuming that a draft biological opinion would have expressed the Services’ settled conclu

sion, 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 rec

ommendations proved to be the last word within the Ser

vices about the 2013 version of the EPA’s proposed rule. But that does not change our analysis. The recommenda

tions were not last because they were final; 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 consul

tation with the Services prom pted the EPA to alter key fea

tures of its 2013 proposal, so there was never a need for the Services to render a definitive judgment about it. The opin

ion that came to fruition was the Services’ joint “no jeop

ardy” opinion about the 2014 version of the EPA’s proposed rule. The staff recommendations were thus part of a delib

erative process that worked as it should have: The Services and the EPA consulted about how the rule would affect aquatic wildlife until the EPA settled on an approach that would not jeopardize any protected species. Sierra Club warns that rulin g against it here would per

mit the Services to stamp every document “draft,” thereby protecting even final 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 final. But determining whether an agency’s position is final for purposes of the deliberat ive process privilege is a functional rather than formal inquiry. If the evidence es

-11 Cite as: 592 U. S. ____ (2021)

Opinion of the Court tablishes that an agency has hidden a functionally final de

cision in draft form, the deliberative process privilege will not apply. The Services, howeve r, did not engage in such a charade here.

* * * The deliberative process priv ilege protects the draft bio

logical opinions from disclosure because they are both predecisional and deliberative. We reverse the contrary judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. 5

It is so ordered.

——————

5 We agree with the parties that the District Court must determine on remand whether any parts of the docu ments at issue are segregable. See 5 U. S. C. §552(b) (Agencies must disclose “[a]ny reasonably segregable portion” of a document containi ng some exempt information); §552(a)(4)(B); NLRB v. Sears Roebuck & Co ., 421 U. S. 132, 161, n. 27 (1975)._________________

_________________ Cite as: 592 U. S. ____ (2021) 1

B REYER , J., dissenting 

## SUPREME COURT OF THE UNITED STATES

No. 19–547

UNITED STATES FISH AND WILDLIFE SERVICE,
ET AL ., PETITIONERS v. SIERRA CLUB, INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[March 4, 2021]

J USTICE B REYER , with whom J USTICE S OTOMAYOR 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 docu

ments: “Final Biological Opinions,” “Draft Biological Opin

ions,” and “Drafts of Draft Biological Opinions.” A Final Biological Opinion, as its name suggests, embodies a final agency decision, for example, a decision by the Services that a proposed Environmental Protection Agency (EPA) action will jeopardize an endangered sp ecies. We all agree, I be

lieve, that a Final Biological Opinion is not deliberative and that Exemption 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 Biological Opinion. That kind of document normally is not final. It normally is deliberative. And Exemption 5 nor

mally protects it from disclosure. But what about the second kind of document, a Draft Bi

ological Opinion? Does it normally set forth a “final” Ser

vices view, or is it normally a “deliberative” document? I agree with the Court that whether a document is “final” or “deliberative” primarily depends upon its “function[ ]” within an agency’s decision-making process. Ante , at 10; see also NLRB v. Sears, Roebuck & Co. , 421 U. S. 132, 1382 UNITED STATES FISH AND WILDLIFE SERV. v. SIERRA CLUB, INC.
B REYER , J., dissenting (1975) (“[T]he function of the documents” and “the context of the administrative proce ss which generated them” is “[c]rucial” to understanding whether the deliberative pro

cess privilege applies). I believe that, in the context before us, the Services’ Draft Biological Opinions reflect “final” 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, litera lly speaking, a Draft Biological Opinion is a “final” document wi th 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 doc

ument 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 final 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, with

drawing a Final Biological Opinion already issued and sub

stituting a new one in its place. See, e.g. , Oregon Natural Resources 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 reinitiate consultation in specified 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 co nsidered”). The mere possi

bility of a future change does not alter the finality, or the final effect, of the original document. Second, a Final Biological Op inion and a Draft Biological Opinion finding jeopardy serv e the same functions within the formal administrative process. Both explain the Ser

vices’ findings. Both set forth “reasonable and prudent”3 Cite as: 592 U. S. ____ (2021)

B REYER , J., dissenting modifications or alternatives. 16 U. S. C. §1536(b)(3)(A). And both have substantially the same effect on the EPA (the action agency in this case). In response to both docu

ments, the EPA has essentially fo ur options: It can drop the proposed action; it can accept the proposed modifications; it can take the proposed action and potentially expose itself to considerable penalties, or it can seek a Cabinet-level ex

emption. 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, Con

sultations | Frequently Asked Questions (June 10, 2020), https://www.fws.gov/endanger ed / what-we-do/faq.html. The EPA could also, of course, propose a new course of ac

tion embodying modifications not proposed by the Ser

vices—possibly generating a ne w 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 ac

tion). 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 be

fore it issues a Final Biological Opinion. 50 CFR §402.14(g)(5). It then continues its consultation with the EPA but not with an eye toward changing the Services’ en

vironmental analysis or conclusions. Rather, the negotia

tions are designed to find less damaging alternatives to the original EPA-proposed action. See ibid. (allowing the ac

tion agency to request the Draf t Biological Opinion “for the purpose of analyzing the reasonable and prudent alterna

tives”). If the agencies find suitable alternatives, the EPA will then publicly adopt those alternatives, and the process will culminate in a Final Biological Opinion finding no jeop

ardy. The function of a Draft Biological Opinion finding jeop

ardy then is much the same as that of a Final Biological4 UNITED STATES FISH AND WILDLIFE SERV. v. SIERRA CLUB, INC.
B REYER , J., dissenting Opinion finding jeopardy. Transmitting the Draft Biologi

cal 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 jeopardy and alternatives and triggers within the EPA the process of deciding what to do about those conclusions. Amici tell us without contradiction that “out of 6,829 formal consultations” between 2008 and 2015, the Fish and Wild

life Service “issued a [Final Biological Opinion finding] jeop

ardy” “only twice .” Brief for Center for Biological Diversity et al. as Amici Curiae 22–23. If a Final Biological Opinion is discoverable under FOIA, as all seem to agree it is, why would a Draft Biological Opinion, embodying the same Ser

vice conclusions (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 Opin

ions to private applicants if requested); see also Department of Interior v. Klamath Water Users Protective Assn. , 532 U. S. 1, 4–5 (2001) (documents exchanged between agency and third party not covered by Exemption 5 because they are no longer inter-agency or intra-agency communica

tions). To hold that Draft Bi ological Opinions are discover

able when a private party seeks an EPA permit but not when, as here, the EPA seeks to write a generally applica

ble rule that governs private party conduct seems highly5 Cite as: 592 U. S. ____ (2021)

B REYER , J., dissenting

anomalous. Even where there is no pr ivate 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 talk

ing points for Draft Biological Opinion); Supp. Record in No. 17–16560 (CA9), pp. 164–199 (citing additional exam

ples of public disclosure of Draft Biological Opinions); L. Schiffer, National Oceanic and Atmospheric Admin., Guide

lines 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 significance, such as final draft en

vironmental impact statements, . . . will not be flagged 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 [Office 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 flow from the Services’ comple

tion of a Draft Biological Opinion. The Services’ regulations state that “[i]f requested, the Service shall make available to the Federal agency [ i.e., the EPA] the draft biological opinion for the purpose of analyzing the reasonable and prudent 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 specified deadline. Ibid. Moreover, as explained, Draft Biological 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 Opin

ion has “legal consequences,” even though the action agency6 UNITED STATES FISH AND WILDLIFE SERV. v. SIERRA CLUB, INC.
B REYER , J., dissenting is not legally obligated to accept the opinion’s recommenda

tions or conclusions, 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 al so place Draft Biological Opinions outside Exemption 5’s protection? In sum, the likely finality of a Draft Biological Opinion, its similarity to a Final Biological Opinion, the similar pur

poses it serves, the agency’s actual practice, the anomaly that would otherwise exist depe nding upon the presence or absence 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 delib

erative 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 7, n. 4, 9. The National Marine Fisheries Service’s documents contain highlighting and editing marks reflec

tive of a work-in-progress. But the Fish and Wildlife Ser

vice documents do not, and th e record indicates they may have been complete but for a final 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 Opin

ions, I agree with the majority that a segregability analysis would be appropriate. For these reasons, I dissent.