Supreme Court Sets Oral Argument Date In Cooling Water FOIA Suit

摘要

The Supreme Court has set oral argument for Nov. 2 in environmentalists'' Freedom of Information Act (FOIA) suit seeking documents from EPA's development of its Clean Water Act (CWA) cooling water rule, teeing up a decision in early 2021 on the scope of the FOIA exemption for documents that are part of a "deliberative process." In United States Fish and Wildlife Service (FWS), et al. v. Sierra Club, the Trump administration is hoping to overturn an appellate ruling that took a narrow view of FOIA's deliberative-process exemption. A ruling for the government could create new barriers to open-records requests from private parties including environmentalists, industry and individuals, but if the justices back Sierra Club it could open the door to release of documents that EPA and other agencies use to inform their rulemaking processes, if courts find that they carry legal weight on their own. At issue in the suit are draft biological opinions that FWS and the National Marine Fisheries Service sent to EPA on its then-draft rule for cooling water intakes, which found that the proposal was likely to cause jeopardy for certain species listed under the Endangered Species Act (ESA), and to negatively impact critical habitat. Sierra Club sought the records after the U.S. Court of Appeals for the 2nd Circuit upheld the rule on its merits in 2018.