Barrett issues first majority opinion on high court
WASHINGTON — Justice Amy Coney Barrett issued her first signed majority opinion for the Supreme Court on Thursday, siding with the government over an environmental group seeking draft agenda reports about potential harm to endangered species.
Barrett’s 7-to-2 opinion said the U.S. Fish and Wildlife Service did not have to provide the Sierra Club the guidance it gave the Environmental Protection Agency about a proposed rule regarding power plants that use water to cool their equipment.
The rest of the court’s conservatives joined Barrett’s opinion, as did liberal Justice Elena Kagan. Liberal Justices Stephen Breyer and Sonia Sotomayor issued a mild dissent.
The case was the first Barrett heard after President Donald Trump nominated her to replace liberal Justice Ruth Bader Ginsburg.
Barrett’s opinion, assigned by Chief Justice John G. Roberts Jr., was a fact-laden interpretation of the Freedom of Information Act, which provides the public with access to documents used by the government in making decisions.
But there are exceptions to the law, and one concerns the “deliberative process privilege.” It protects documents generated during an agency’s deliberations about policy, as opposed to documents that explain the policy the agency adopts.
Barrett said the “in-house drafts” that the Sierra Club sought were protected, because they reflected “a preliminary view — not a final decision — about the likely effect of the EPA’s proposed rule on endangered species.”
As the EPA was considering a proposed rule on “cooling water intake structures,” which suck in vast amounts of water from various sources to cool industrial equipment, it was required to seek guidance from the Fish and Wildlife Service and the National Marine Fisheries Service.
In late 2013, the services drafted opinions that said the proposed rule would have adverse effects. But officials did not issue the opinions as final and instead the EPA modified the rule. The services gave a thumbs-up to the new rule, and it was implemented.
The Sierra Club wanted to see all of the paperwork, but the government withheld those draft opinions as covered by the privilege exception in the law.
In a second decision, the court made it more difficult for those who have been in the country illegally for more than a decade to avoid deportation when they have committed a crime.
It concerned removal proceedings against Clemente Avelino Pereida, who entered the United States unlawfully from Mexico more than 25 years ago. He and his wife have three children, one of them a U.S. citizen.
To show that he is eligible to request a removal waiver from the attorney general, Pereida must show he has been in the country for 10 years or more, has good moral character, that his removal would impose an exceptional hardship on a close relative who is a citizen or permanent resident, and that he has not been convicted of certain serious criminal offenses.
But Pereida had been charged in Nebraska with using a fraudulent Social Security card to get a job. His conviction was for criminal impersonation.
Justice Neil Gorsuch, writing for the court’s conservatives in the 5-to-3 ruling, said it is up to Pereida to prove that the conviction does not involve the “moral turpitude” that disqualifies him from seeking a waiver from deportation.