Skip to content

“Justices Fret Over FOIA Evasion but Struggle for Better Test”

“The U.S. Supreme Court seemed wary Monday of limiting government disclosure requirements, but unsure where to draw the line in a complex clash over Endangered Species Act records.

The case, U.S. Fish and Wildlife Service v. Sierra Club, has big implications for government transparency, in environmental contexts and beyond. It attracted even broader interest as newly confirmed Justice Amy Coney Barrett sat for oral argument for the first time.

Hearing the case remotely, Barrett and her colleagues pressed both sides to explain what legal test the high court should apply when deciding whether draft documents are subject to public disclosure under the Freedom of Information Act. The dispute centers on federal wildlife agencies’ draft opinions that a proposed EPA regulation would harm endangered species.

“I think there’s a concern lurking in this case that executive branch officials might just stamp ‘draft’ on everything and therefore avoid FOIA,” Justice Brett Kavanaugh said.”

Ellen M. Gilmer reports for Bloomberg Environment November 2, 2020.


“Supreme Court Weighs Public Records Law As Sierra Club Challenges FOIA Exemptions” (The Hill)

“Barrett Makes Supreme Court Debut in Environmental Documents Case” (Bloomberg Environment)

“With Justice Barrett, a Tectonic Court Shift on the Environment” (YaleE360)