Latest 2 Cases: United States Fish and Wildlife Service v. Sierra Club, Inc. (Environmental Law), Pereida v. Wilkinson (Immigration Law)

Why the Supreme Court was Right Last Week to Deny Review of the Pennsylvania Supreme Court Decisions Handed Down Prior to the 2020 Election

VIKRAM DAVID AMAR, JASON MAZZONE

Illinois Law dean Vikram David Amar and professor Jason Mazzone argue that the U.S. Supreme Court correctly denied review last week of the Pennsylvania Supreme Court decisions handed down before the 2020 election. Dean Amar and Professor Mazzone explain why the majority denied review and point out that the dissenting opinions unwittingly demonstrate the rightness of the majority.

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United States Fish and Wildlife Service v. Sierra Club, Inc.

Docket: 19-547

Opinion Date: March 4, 2021

Judge: Amy Coney Barrett

Areas of Law: Environmental Law, Government & Administrative Law

The Environmental Protection Agency (EPA) proposed a rule in 2011 regarding cooling water intake structures. Because aquatic wildlife can become trapped in intake structures, the Endangered Species Act required the EPA to consult with the Fish and Wildlife Service and National Marine Fisheries Service before proceeding. Issuance of a “jeopardy” biological opinion would require the EPA either to implement alternatives, to terminate the action, or to seek an exemption. After consulting with the Services, the EPA changed its proposed rule. Staff members at the Services concluded that the 2013 proposed rule was likely to jeopardize certain species and sent drafts of their opinions to the decision-makers within the Services. Those decision-makers neither approved the drafts nor sent them to the EPA but extended the consultation. In 2014, the EPA produced a revised proposed rule that differed significantly from the 2013 version. The Services issued a final “no jeopardy” biological opinion. The EPA issued its final rule. Sierra Club submitted Freedom of Information Act (FOIA) requests for records related to the consultations. The Services invoked the deliberative process privilege to prevent disclosure of the draft biological opinions analyzing the 2013 proposed rule. The Ninth Circuit held that the draft biological opinions were not privileged. The Supreme Court reversed. The deliberative process privilege protects from FOIA disclosure in-house draft biological opinions that are pre-decisional and deliberative, even if the drafts reflect the agencies’ last views about a proposal. The privilege is intended to encourage candor and blunt the chilling effect of possible disclosure; it distinguishes between pre-decisional, deliberative documents, which are exempt from disclosure, and documents reflecting a final agency decision and the reasons supporting it, which are not. A document does not represent an agency’s final decision solely because nothing follows it; sometimes a proposal “dies on the vine.” The privilege protects the draft biological opinions from disclosure because they reflect a preliminary view, not a final decision, about the proposed 2013 rule. The draft opinions were subject to change and had no direct legal consequences.

Pereida v. Wilkinson

Docket: 19-438

Opinion Date: March 4, 2021

Judge: Neil M. Gorsuch

Areas of Law: Immigration Law

In removal proceedings for entering and remaining in the country unlawfully, Pereida sought to establish his eligibility for cancellation of removal under 8 U.S.C. 1229a(c)(4), 1229b(b)(1). Eligibility requires certain nonpermanent residents to prove that they have not been convicted of specified criminal offenses. While his proceedings were pending, Pereida was convicted of a crime under Nebraska law. Analyzing whether Pereida’s conviction constituted a “crime involving moral turpitude” that would bar his eligibility for cancellation of removal, the IJ found that the Nebraska statute stated several separate crimes, some of which involved moral turpitude and one—conducting business without a required license—which did not. Because Nebraska had charged Pereida with using a fraudulent social security card to obtain employment, the IJ concluded that Pereida’s conviction likely constituted a crime involving moral turpitude. The BIA and the Eighth Circuit upheld the denial of relief. The Supreme Court affirmed. An alien seeking to cancel a lawful removal order bears the burden of showing he has not been convicted of a disqualifying offense. The alien has not carried that burden when the record shows he was convicted under a statute listing multiple offenses, some of which are disqualifying, and the record is ambiguous as to which crime formed the basis of his conviction. The Nebraska statute is divisible, listing multiple crimes, some of which are crimes of moral turpitude. In cases involving divisible statutes, judges determine which of the offenses an individual committed by employing a “modified” categorical approach, reviewing the record to discover which of the enumerated alternatives played a part in the defendant’s conviction. Just as evidentiary gaps work against the government in criminal cases where it bears the burden, they work against the alien seeking relief from a lawful removal order.