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(Slip Opinion) OCTOBER TERM, 2020 1 

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 regarding “cooling water intake structures” used to cool industrial equipment. 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 Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) (together, the Services) before proceeding. Following this required consultation, the Services prepare an official “biological opinion” (known 

as a “jeopardy” or “no jeopardy” biological opinion) addressing whether 

the agency’s proposal will jeopardize the existence of threatened or endangered species. 50 CFR §402.14(h)(1)(iv). Issuance of a “jeopardy”

biological opinion here would require the EPA either to implement certain alternatives proposed by the Services, to terminate the action altogether, 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 proposed rule, and the Services received the revised version in November 

2013. Staff members at NMFS and FWS soon completed draft biological 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 significantly 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. The EPA 
 

 

2 UNITED STATES FISH AND WILDLIFE SERV. v. 

SIERRA CLUB, INC. 

Syllabus 

issued its final rule that same day.

Respondent Sierra Club, an environmental organization, submitted

requests under the Freedom of Information Act (FOIA) for records related to the Services’ consultations with the EPA. As relevant here, 

the Services invoked the deliberative process privilege to prevent disclosure of the draft biological opinions analyzing the EPA’s 2013 proposed 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 labeled as drafts, the draft opinions

represented the Services’ final 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 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 deliberations 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 encouraging candor and blunting the chilling effect that accompanies the 

prospect of disclosure. The privilege distinguishes between predecisional, deliberative documents, which are exempt from disclosure, and 

documents reflecting a final agency decision and the reasons supporting it, which are not. See Renegotiation Bd. v. Grumman Aircraft Engineering Corp., 421 U. S. 168, 186. A document does not represent an

agency’s final 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 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 process privilege protects the draft biological

opinions from disclosure because they reflect a preliminary view—not 

a final decision—about the EPA’s proposed 2013 rule. The administrative context confirms 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 final. Pp. 7–11. 
 

 

 

Cite as: 592 U. S. ____ (2021) 3 

Syllabus 

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. 

BREYER, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined. 
 

 

 

_________________ 

_________________ 

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

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, Washington, D. C. 20543, of any typographical or other formal 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] 

JUSTICE BARRETT 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 exemptions. Exemption 5 incorporates the privileges available to

Government agencies in civil litigation, such as the deliberative 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 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 “cooling 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 equipment. EPA’s stated goal was to require industrial facilities

to use “the best technology available” for “minimizing adverse 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 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 

“adversely 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 official “biological

opinion” 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 conclude that the action will cause “jeopardy,” 

they must propose “reasonable and prudent alternatives” to

the action that would avoid harming the threatened species. 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 alternatives, terminate the action altogether, or seek an exemption from the Endangered Species Committee. 16 U. S. C. 

—————— 1The FWS and NMFS administer the statute on behalf of the Secretaries of Interior and Commerce, respectively. See 50 CFR §§17.11,

222.101(a), 402.01(b). 
Cite as: 592 U. S. ____ (2021) 3 

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 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 version 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 completed 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 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 elements 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. 

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 significantly 
 

 

4 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 terminating 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 submitted 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 deliberative process privilege shields documents that reflect 

an agency’s preliminary thinking about a problem, as opposed 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 subject 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 process rather than summaries of the Services’ final views. 

We granted certiorari. 589 U. S. ___ (2020). 

—————— 2The Ninth Circuit also concluded that 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. 
Cite as: 592 U. S. ____ (2021) 5 

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 the

agency.” §552(b)(5). As the text indicates—albeit in a lessthan-straightforward way—this exemption incorporates

the privileges available to Government agencies in civil litigation. That list includes the deliberative process privilege, attorney-client privilege, and attorney work-product

privilege. 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 fishbowl,” EPA v. Mink, 

410 U. S. 73, 87 (1973) (internal quotation marks omitted), 

the deliberative process privilege shields from disclosure

“documents reflecting advisory 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 omitted). The privilege is rooted

in “the obvious realization that officials will not communicate candidly among themselves if each remark is a potential 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 therefore distinguishes between predecisional, deliberative documents, which are exempt from disclosure, and documents 
 

 

6 UNITED STATES FISH AND WILDLIFE SERV. v. 

SIERRA CLUB, INC. 

Opinion of the Court 

reflecting a final agency decision and the reasons supporting it, which are not. See Renegotiation Bd. v. Grumman 

Aircraft Engineering Corp., 421 U. S. 168, 186 (1975). Documents are “predecisional” if they were generated before

the agency’s final 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 represents an agency’s final decision, but one thing is clear: A

document is not final 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 discarded or simply languish. Yet documents discussing such dead-end ideas can hardly be described as reflecting 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 final 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

final view, the document reflects “the ‘consummation’ of the 

agency’s decisionmaking process” and not a “merely tentative” 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” 
 

Cite as: 592 U. S. ____ (2021) 7 

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 privilege protects the draft biological opinions at issue here because they reflect a preliminary 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 identified 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 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 confirms 

that the drafts are what they sound like: opinions that were 

subject to change. 

Consider the regulatory process that generates a draft biological opinion. The governing regulation distinguishes 

between draft and final 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 final opinion “while the 

draft is under review’’ by the action agency. 50 CFR 

§402.14(g)(5). This provision thus specifically contemplates 

further review by the agency after receipt of the draft, and 

with it, the possibility of changes to the biological opinion 

after the Services send the agency the draft.4 

—————— 3Like 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 though the opinion triggers a discussion of reasonable and

prudent alternatives. See 50 CFR §402.14(g)(5) (requiring the Services 
8 UNITED STATES FISH AND WILDLIFE SERV. v. 

SIERRA CLUB, INC. 

Opinion of the Court 

Consistent with this understanding, the agreement between 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 documents may have been called “drafts,” they were actually intended 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 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 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 indication 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 treat 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 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 

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 opinions. 
 

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

Opinion of the Court 

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 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, 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 practical 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 

officials—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 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 response 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 decisionmakers at the Services neither approved the drafts nor sent 

them to the EPA. Instead, the decisionmakers concluded 
 

 

10 UNITED STATES FISH AND WILDLIFE SERV. v. 

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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 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 recommendations 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 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 consultation with the Services prompted the EPA to alter key features of its 2013 proposal, so there was never a need for the 

Services to render a definitive 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 wildlife 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

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 deliberative process privilege is a 

functional rather than formal inquiry. If the evidence es-
 

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

Opinion of the Court 

tablishes that an agency has hidden a functionally final 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 biological 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. 

—————— 5We 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 

portion” of a document containing 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 

BREYER, 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] 

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 final 

agency decision, for example, a decision by the Services that 

a proposed Environmental Protection Agency (EPA) action

will jeopardize an endangered species. We all agree, I believe, 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 normally protects it from disclosure.

But what about the second kind of document, a Draft Biological Opinion? Does it normally set forth a “final” Services 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, 138 
 

 

2 UNITED STATES FISH AND WILDLIFE SERV. v. 

SIERRA CLUB, INC. 

BREYER, J., dissenting 

(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 process privilege applies). I believe that, in the context before 

us, the Services’ Draft Biological Opinions reflect “final” decisions 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 “final” 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 further deliberation about the draft’s content is likely, the document 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 Biological Opinion. But, in principle, a Service could also 

change its mind about a Final Biological Opinion, withdrawing a Final Biological Opinion already issued and substituting 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 consultation . . . [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 considered”). The mere possibility of a future change does not alter the finality, or the 

final effect, of the original document. 

Second, a Final Biological Opinion and a Draft Biological 

Opinion finding jeopardy serve the same functions within

the formal administrative process. Both explain the Services’ findings. Both set forth “reasonable and prudent” 
 

Cite as: 592 U. S. ____ (2021) 3 

BREYER, 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 documents, the EPA has essentially four 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 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, Consultations | 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 embodying modifications 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 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’ environmental analysis or conclusions. Rather, the negotiations are designed to find less damaging alternatives to the

original EPA-proposed action. See ibid. (allowing the action agency to request the Draft Biological Opinion “for the

purpose of analyzing the reasonable and prudent alternatives”). 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 jeopardy.

The function of a Draft Biological Opinion finding jeopardy then is much the same as that of a Final Biological 
 

 

 

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BREYER, J., dissenting 

Opinion finding 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 

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 Wildlife Service “issued a [Final Biological Opinion finding] jeopardy” “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 Service 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 review, 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 (2001) (documents exchanged between agency

and third party 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 governs private party conduct seems highly 
Cite as: 592 U. S. ____ (2021) 5 

BREYER, J., dissenting 

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 (discussing 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 significance, such as final draft environmental 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’ completion 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 Opinion has “legal consequences,” even though the action agency 
 

 

 

6 UNITED STATES FISH AND WILDLIFE SERV. v. 

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BREYER, J., dissenting 

is not legally obligated to accept the opinion’s recommendations 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 also 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 purposes it serves, the agency’s actual practice, the anomaly

that would otherwise exist depending 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 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 7, n. 4, 9. The National Marine Fisheries Service’s 

documents contain highlighting and editing marks reflective 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 final signature. See App. 105.

Given the fact-intensive nature of this question, I would remand 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, I dissent.