The good feeling is fleeting.
It may be true that there are no sure things in life but if the United States Supreme Court agrees to review a decision by the Ninth Circuit Court of Appeals, particularly in an environmental case, the safe bet is that it is going to reverse the Appeals Court's decision.
Today the Supreme Court held that a draft biological opinion by the Fish and Wildlife Service and the National Marine Fisheries Services was in fact protected by the Freedom of Information Act's deliberative process exemption. The Ninth Circuit Court of Appeals, and Supreme Court Justices Breyer and Sotomayor, thought that, because the draft had been shared with EPA, and EPA changed its policy course after reviewing the draft, it was not subject to the deliberative process exemption.
And so, yet again, an Environmental NGO, in this case the Sierra Club, enjoyed the legal equivalent of a sugar high resulting from its choice of the venue for its lawsuit against the Federal Government only to come back to earth upon further review.
A lower court misinterpreted the Freedom of Information Act when it mandated the disclosure of draft opinions that should have been protected by the law’s exemption for records from an agency’s “deliberative process,” the justices said in a 7-2 opinion by Justice Amy Coney Barrett.
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