Issues
Did the United States Fish and Wildlife Service properly determine that currently unoccupied and uninhabitable land constitutes critical habitat for the dusky gopher frog under the Endangered Species Act, and is this decision subject to judicial review?
The Supreme Court will determine whether the United States Fish and Wildlife Service has overstepped its authority under the Endangered Species Act of 1973 by designating land that is currently uninhabited and inhospitable for the endangered dusky gopher frog as "critical habitat" for such frog populations. The Supreme Court will also consider whether the agency’s decision in this matter is subject to judicial review. The Fifth Circuit held and the Fish and Wildlife Service now argues that the agency's designation was in accordance with the discretion afforded to the agency by Congress, and that the Endangered Species Act does not authorize judicial review. The Court’s decision in this case will have implications for property rights, federalism, and agency discretion.
Questions as Framed for the Court by the Parties
- Whether the Endangered Species Act prohibits designation of private land as unoccupied critical habitat that is neither habitat nor essential to species conservation.
- Whether an agency decision not to exclude an area from critical habitat because of the economic impact of designation is subject to judicial review.
Facts
The dusky gopher frog is an endangered species whose population once spread across forests from Louisiana to Alabama. However, habitat degradation has reduced the frog's population range to a single part of Mississippi. In 2010, under the Endangered Species Act (“ESA”), the United States Fish and Wildlife Service (“the Service”) proposed a rule designating nearby land as "critical habitat" for the frogs. After several rounds of notice and comment, economic analysis, and scientific peer review, the Service promulgated a rule designating 6,477 acres of land in Mississippi and Louisiana as critical habitat for the dusky gopher frog.
This designation was made pursuant to 16 U.S.C. § 1533, which allows the Service to designate land as "critical habitat" if it deems, after careful scientific analysis, that the land is “essential to the conservation of such species.” The statute also gives the Service the discretion to exclude the land from designation when the costs of such action would outweigh the benefits. The "critical habitat" designation is important as federal agencies cannot carry out activities or authorize private parties to carry out activities that would damage such lands. Notably, however, the Service cannot compel a landowner to change any aspect of the "critical habitat" or actively reintroduce the endangered species to the area.
Although the portions of the land in Louisiana ("Unit 1") have not held dusky gopher frogs for decades, they contain five ephemeral ponds, which are necessary for the frogs to breed. These ponds, which flood and dry out in cycles, are both rare in nature and difficult to recreate artificially, making the land invaluable to conservation efforts. . However, except for the ephemeral ponds, no other ecological features exist that would make the land suitable for the frogs. For example, the trees on the land are not the type that the frogs require and would need to be cleared for suitable trees to be planted.
Private landowners Markle Interests, L.L.C., P&F Lumber Company 2000, L.L.C., PF Monroe Properties, L.L.C., and Weyerhaeuser Company (“Weyerhaeuser” and collectively “the Landowners”) own the Louisiana land. The Landowners have plans for residential development, commercial development, and timber operations on the land that are now threatened by the critical habitat designation.
The Landowners challenged the Service’s designation of the land in Louisiana as critical habitat in the District Court for the Eastern District of Louisiana, arguing that the Service exceeded its statutory authority by designating land that does not, and cannot, support the dusky gopher frog— and thus was not “essential”— as critical habitat.
The district court granted summary judgment for the Service, holding that, as their explanation for why the land was essential was reasonable, the designation was entitled to Chevron deference. The court also held that, under the Administrative Procedure Act (“APA”), it had to assume the Service’s decision not to exclude the land from critical habitat designation was valid since the Service followed the necessary procedures and considered the economic impact of the designation.
On appeal, the Fifth Circuit affirmed the lower court with one judge dissenting, holding that Chevron deference was appropriate because Congress left the definition of “essential” open for determination by the Service. The court also held that the Service’s decision not to exclude the land was not reviewable under Heckler v. Chaney and the APA as there was no standard against which the court could judge the agency’s actions. The United States Supreme Court granted certiorari on January 22, 2018.
Analysis
DEFINING UNOCCUPIED CRITICAL HABITAT
Weyerhaeuser argues that the designation of Unit 1 as critical habitat violates the “clear and conclusive terms” of the ESA. Weyerhaeuser first claims that, under Section 4 of the ESA, the Service may only designate areas that constitute a habitat for a species as critical habitat. Weyerhaeuser argues that, although the ESA does not define the term “habitat,” the term has an “ordinary, contemporary, common meaning” that does not encompass unoccupied or uninhabitable land such as Unit 1. Additionally, Weyerhaeuser also points to dictionary definitions of “habitat,” which refers to an area where a species is physically present. Therefore, Weyerhaeuser concludes, the Service acted outside the scope the ESA by designating land that is unoccupied and uninhabitable by the dusky gopher frog as critical habitat.
Weyerhaeuser also claims that the Service’s designation of Unit 1 as “unoccupied critical habitat” does not meet the relevant test in the ESA, which requires that the area itself—not just features of the area— be “essential to the conservation of the species.” Weyerhaeuser argues that Unit 1 lacks the features that the Service has put forth as essential to the continued survival of the frog, namely “ephemeral wetlands, open canopy, fire-maintained uplands, and similar connective pathways.” For something to be essential, Weyerhaeuser asserts, it must be necessary for the continued existence of the species in question. Weyerhaeuser also argues that, under the principle of statutory construction, the same terms in different parts of an act should be read to have the same meaning. Given this, the term “habitat” must be interpreted similarly throughout the ESA. Since the term “habitat” is used in Section 7 of the ESA to refer to the species’ actual habitat, Weyerhaeuser argues that Section 4 must also refer to actual habitat.
The Service counters that its determination that Unit 1 contains critical habitat for the frog and is necessary for the frog’s conservation meets all statutory criteria. According to the Service, Section 4 of the ESA empowers the Service to assess a species’ habitat, and determine which portions of that habitat should be considered “critical habitat” as defined by Section 3. The Service contends that, by declining to define the term “habitat” in the ESA, Congress intended for the term to be interpreted by the Service. The Service thus asserts that the term “habitat” broadly includes areas that may not be ideal for the full duration of a species’ lifespan and areas that may require human intervention before the species can occupy them. Furthermore, the Service argues, language in Section 4 authorizes “any habitat” to be designated as “critical habitat”, while language in other statutes refers to areas that do not include all the elements needed for a species’ survival as “habitat.” Therefore, the Service concludes, Unit 1 was properly designated as “critical unoccupied habitat”, even though the area cannot support the frog at all stages of life and currently exists in an uninhabitable state.
Additionally, the Service notes that not all the characteristics of occupied critical habitat under the ESA are required for an area to qualify as unoccupied critical habitat. The Service asserts that the test for an area to constitute unoccupied critical habitat solely consists of a determination that the unoccupied area is “essential for the overall conservation of the species”a standard that Unit 1 meets due to its nature as a viable breeding habitat, and as a refuge for the frog in the event of an “environmental threat.”
APPLICATION OF THE CONSTITUTIONAL AVOIDANCE CANON
Weyerhaeuser argues that the Service’s designation of Unit 1 as critical habitat raises two serious constitutional issues and thus contravenes the constitutional avoidance canon. The constitutional avoidance canon holds that, when possible, the language of a statute should not be construed in such a way as to raise constitutional questions.
The first constitutional concern, according to Weyerhaeuser, is that the Service’s designation is an unprecedented intrusion into the traditional power of the States over land and water use. Weyerhaeuser contends that, in the absence of explicit congressional expression, the Service’s designation stretches the statutory language and oversteps the agency’s authority. Weyerhaeuser also argues that the Service’s designation distorts the boundaries of the federal commerce power. Weyerhaeuser posits that the Commerce Clause permits Congress and federal agencies to regulate commerce among the states—not habitats— indicates that the Service has made no argument that the dusky gopher frog is an object of interstate commerce, and thus should not be allowed to intrude upon state authority.
The Service counters that the canon of constitutional avoidance is inapplicable because Weyerhaeuser does not explain how the constitutional doubts alleged would be avoided with an alternative interpretation. In the absence of a plausible alternative interpretation, they argue, the canon has no application. The Service responds to Weyerhaeuser’s first point by arguing that its critical habitat designation does not stretch federal authority, as such a designation does not create new federal jurisdiction. Rather, they contend, the designation only applies insofar as federal jurisdiction over the land already exists and does not impose new legal obligations on the landowners. Secondly, the Service argues, constitutional avoidance cannot be invoked to override the plain, unambiguous text of a statute. According to the Service, the text of the ESA clearly grants the authority to designate habitat for species that are not necessarily relevant to interstate commerce, and no canon of interpretation can challenge thwart that interpretation. The Service finally claims that even if the constitutional concerns were valid, Weyerhaeuser has not provided an alternative interpretation of the ESA that would not raise the same concerns.
AVAILABILITY AND STANDARD OF JUDICIAL REVIEW
Weyerhaeuser argues that the Fifth Circuit misconstrued Section 4(b)(2) of the ESA when it found that the ESA barred judicial review of the Service’s decision to designate Unit 1 as critical habitat despite the economic impact of such designation. In doing so, Weyerhaeuser claims, the Fifth Circuit disregarded settled precedent regarding judicial review of agencies and abandoned its responsibility to oversee agency actions under the APA. Weyerhaeuser posits that under the Supreme Court's holding in Bennet v. Spear, decisions by the Service to designate areas as critical habitat are subject to judicial review.
According to Weyerhaeuser, this conclusion is supported by foundational principles of administrative law that uphold a strong presumption in favor of subjecting administrative action to judicial review. Weyerhaeuser asserts that there is nothing in the ESA to overcome this presumption. Alternatively, Weyerhaeuser contends, the Fifth Circuit presumed unreviewability of the Service’s decision based on permissive phrasing in the text of the ESA. Weyerhaeuser argues that permissive phrasing in the APA does not bar judicial review and posits that even a grant of broad discretion does not mean that Congress has “left everything” up to the Agency. The standard made explicit under the APA, Weyerhaeuser indicates, is for agency actions to be reviewed for any “abuse of discretion.”
The Service, in response, admits that the ESA explicitly permits judicial review of certain actions or failures to act by the Service, but asserts that the ESA does not authorize review of the manner the Service performs its functions. The Service argues that under the APA, judicial review is prohibited where the agency action is committed to agency discretion under the law when the relevant statute offers no “meaningful standard” with which to measure the agency’s use of discretion. Therefore, the Service argues, its decision not to exclude Unit 1 from designation as critical habitat is not subject to judicial review, because the ESA contains no such standard to be used to judge the Service’s use of discretion.
Instead, the Service contends, the applicable standard by which such a designation should be overturned is arbitrariness - or if it is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” Furthermore, the Service asserts that Congress specifically enacted Section 4(b)(2) of the ESA with the intention that the Service would not be compelled to give “predominant consideration” to economic costs, or any other relevant factor in making its determinations.
Discussion
IMPACT ON LANDOWNERS
The United States Chamber of Commerce, supporting Weyerhaeuser, argues that approving this designation of land as critical habitat will make it easier for the Service to limit how privately-owned land can be used without compensating the landowners. The Chamber of Commerce claims that allowing the Service to designate currently-uninhabitable land as critical habitat for an endangered species could cost landowners around the country billions of dollars by expanding what can be designated as critical habitat. The National Association of Home Builders and the American Forest Resource Council also argue that the cost of complying with federal regulations in new home development is rising rapidly and increasing costs for homeowners. They are concerned that this trend will only be made worse if it becomes easier for the Service to designate land as critical habitat.
Former Officials for the Department of the Interior in support of the Service contend instead that affirming the lower court’s decision will not have an adverse impact on landowners because the critical habitat designation often imposes little to no burden on owners of the designated land. Moreover, a different group of Landowners in support of the Service argues that the lower court should be affirmed because many landowners welcome designation of their land as critical habitat. The landowners note that critical habitat designation can provide economic benefits, such as providing businesses with a means to attract tourists. Small business owners also argue that the Court should not restrict the Service’s ability to designate land as critical habitat because encouraging endangered species to repopulate abandoned ecosystems can foster ecological diversity and have a positive effect on more than just one parcel of land.
POWER OF THE EPA TO DESIGNATE LAND AS “CRITICAL HABITAT”
Alabama and nineteen other states (“Alabama”) argue in support of Weyerhaeuser that allowing the Service to designate this land as critical habitat leaves no meaningful limit to what the Service may designate in the future. Alabama argues that such a ruling would open land to designation even if it bears no resemblance to the animal’s actual habitat because the Service would have the power to deem any land essential, and could result in empty fields being designated as critical habitat so long as they can one day be modified to suit the endangered species it has been designated for.
However, Environmental Law Professors (“the Professors”), in support of the Service, argue that affirming the lower court would not make the Service’s power limitless because the Service still must base its decision on scientific analysis of factors that make the land an “essential"—and therefore not an arbitrary—designation. Furthermore, the Professors argue that species recovery requires expansion into new territory to support a larger, improved population, and that these designations are necessary because the species’ historical habitat was so degraded that it became no longer habitable.
VALUE OF JUDICIAL REVIEW
The Southeastern Legal Foundation, in support of Weyerhaeuser, argues that the presumption of judicial review of administrative agencies should be upheld to ensure administrative agencies are taking action that can be supported by the law. The Southern Legal Foundation asserts that allowing administrative agencies to escape judicial review would expand the agencies’ power beyond what the Constitution allows and Congress intends, and would remove checks on the Executive Branch. The Chamber of Commerce also argues that making the Service’s critical habitat designations free from judicial review will encourage them to make more unsubstantiated designations than they otherwise would.
The Professors, in support of the Service, argue that judicial review is unnecessary here because Congress intended to give the agency flexibility and discretion in their determinations. Former Officials for the Department of the Interior assert that statutes, like the ESA, that do not give guidance to the court on how to review a decision but instead offer factors that the agency should consider make judicial review unworkable because of the sheer number of factors that the courts would have to consider. Furthermore, the Former Officials argue that discretion is better left to the agency directors who have professional training and understand how to apply the complex scientific and economic analytics that are required to make administrative agency determinations.
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Additional Resources
- Ariane de Vogue, Supreme Court Jumps on Dusky Gopher Frog Case, CNN (Jan. 22, 2018)
- Michael Phillis, High Court Will Hear La. Frog Habitat Fight over ESA Powers, Law 360 (Jan. 22, 2018)
- Jonathan Wood, An Opportunity for Arbitrage, PERC (May 22, 2018)