Babbitt v. Sweet Home Chapt. Comms. for Ore. (94-859), 515 U.S. 687 (1995).
[ Stevens ]
[ O'Connor ]
[ Scalia ]
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No. 94-859


on writ of certiorari to the united states court of appeals for the district of columbia circuit

[June 29, 1995]

Justice O'Connor , concurring.

In my view, the regulation is limited by its terms to actions that actually kill or injure individual animals. Justice Scalia disagrees, arguing that the harm regulation "encompasses injury inflicted, not only upon individual animals, but upon populations of the protected species." Post, at 4-5. At one level, I could not reasonably quarrel with this observation; death to an individual animal always reduces the size of the population in which it lives, and in that sense, "injures" that population. But by its insight, the dissent means something else. Building upon the regulation's use of the word "breeding," Justice Scalia suggests that the regulation facially bars significant habitat modification that actually kills or injures hypothetical animals (or, perhaps more aptly, causes potential additions to the population not to come into being). Because "[i]mpairment of breeding does not `injure' living creatures," Justice Scalia reasons, the regulation must contemplate application to "a population of animals which would otherwise have maintained or increased its numbers." Post, at 5, 22.

I disagree. As an initial matter, I do not find it as easy as Justice Scalia does to dismiss the notion that significant impairment of breeding injures living creatures. To raze the last remaining ground on which the piping plover currently breeds, thereby making it impossible for any piping plovers to reproduce, would obviously injure the population (causing the species' extinction in a generation). But by completely preventing breeding, it would also injure the individual living bird, in the same way that sterilizing the creature injures the individual living bird. To "injure" is, among other things, "to impair." Webster's Ninth New Collegiate Dictionary 623 (1983). One need not subscribe to theories of "psychic harm," cf. post, at 22, n. 5, to recognize that to make it impossible for an animal to reproduce is to impair its most essential physical functions and to render that animal, and its genetic material, biologically obsolete. This, in my view, is actual injury.

In any event, even if impairing an animal's ability to breed were not, in and of itself, an injury to that animal, interference with breeding can cause an animal to suffer other, perhaps more obvious, kinds of injury. The regulation has clear application, for example, to significant habitat modification that kills or physically injures animals which, because they are in a vulnerable breeding state, do not or cannot flee or defend themselves, or to environmental pollutants that cause an animal to suffer physical complications during gestation. Breeding, feeding, and sheltering are what animals do. If significant habitat modification, by interfering with these essential behaviors, actually kills or injures an animal protected by the Act, it causes "harm" within the meaning of the regulation. In contrast to Justice Scalia, I do not read the regulation's "breeding" reference to vitiate or somehow to qualify the clear actual death or injury requirement, or to suggest that the regulation contemplates extension to nonexistent animals.

There is no inconsistency, I should add, between this interpretation and the commentary that accompanied the amendment of the regulation to include the actual death or injury requirement. See 46 Fed. Reg. 54748 (1981). Quite the contrary. It is true, as Justice Scalia observes, post, at 5, that the Fish and Wildlife Service states at one point that "harm" is not limited to "direct physical injury to an individual member of the wildlife species," see 46 Fed. Reg. 54748 (1981). But one could just as easily emphasize the word "direct" in this sentence as the word "individual." [n.*] Elsewhere in the commentary, the Service makes clear that "section 9's threshold does focus on individual members of a protected species." Id., at 54749. Moreover, the Service says that the regulation has no application to speculative harm, explaining that its insertion of the word "actually" was intended "to bulwark the need for proven injury to a species due to a party's actions." Ibid.; see also ibid. (approving language that "Harm covers actions . . . which actually (as opposed to potentially), cause injury"). That a protected animal could have eaten the leaves of a fallen tree or could, perhaps, have fruitfully multiplied in its branches is not sufficient under the regulation. Instead, as the commentary reflects, the regulation requires demonstrable effect (i.e., actual injury or death) on actual, individual members of the protected species.

By the dissent's reckoning, the regulation at issue here, in conjunction with 16 U.S.C. § 1540(1), imposes liability for any habitat modifying conduct that ultimately results in the death of a protected animal, "regardless of whether that result is intended or even foreseeable, and no matter how long the chain of causality between modification and injury." Post, at 3-4; see also post, at 10. Even if §1540(1) does create a strict liability regime (a question we need not decide at this juncture), I see no indication that Congress, in enacting that section, intended to dispense with ordinary principles of proximate causation. Strict liability means liability without regard to fault; it does not normally mean liability for every consequence, however remote, of one's conduct. See generally W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 559-560 (5th ed. 1984) (describing "practical necessity for the restriction of liability within some reasonable bounds" in the strict liability context). I would not lightly assume that Congress, in enacting a strict liability statute that is silent on the causation question, has dispensed with this well entrenched principle. In the absence of congressional abrogation of traditional principles of causation, then, private parties should be held liable under §1540(1) only if their habitat modifying actions proximately cause death or injury to protected animals. Cf. Benefiel v. Exxon Corp., 959 F. 2d 805, 807-808 (CA9 1992) (in enacting the Trans Alaska Pipeline Authorization Act, which provides for strict liability for damages that are the result of discharges, Congress did not intend to abrogate common law principles of proximate cause to reach "remote and derivative" consequences); New York v. Shore Realty Corp., 759 F. 2d 1032, 1044, and n. 17 (CA2 1985) (noting that "[t]raditional tort law has often imposed strict liability while recognizing a causation defense," but that, in enacting CERCLA, Congress "specifically rejected including a causation requirement"). The regulation, of course, does not contradict the presumption or notion that ordinary principles of causation apply here. Indeed, by use of the word "actually," the regulation clearly rejects speculative or conjectural effects, and thus itself invokes principles of proximate causation.

Proximate causation is not a concept susceptible of precise definition. See Keeton, supra, at 280-281. It is easy enough, of course, to identify the extremes. The farmer whose fertilizer is lifted by tornado from tilled fields and deposited miles away in a wildlife refuge cannot, by any stretch of the term, be considered the proximate cause of death or injury to protected species occasioned thereby. At the same time, the landowner who drains a pond on his property, killing endangered fish in the process, would likely satisfy any formulation of the principle. We have recently said that proximate causation "normally eliminates the bizarre," Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U. S. ___, ___ (1995) (slip op., at 9), and have noted its "functionally equivalent" alternative characterizations in terms of foreseeability, see Milwaukee & St. Paul R. Co. v. Kellogg, 94 U.S. 469, 475 (1877) ("natural and probable consequence"), and duty, see Palsgraf v. Long Island R. Co., 248 N. Y. 339, 162 N. E. 99 (1928). Consolidated Rail Corp. v. Gottshall, 512 U. S. ___, ___ (1994) (slip op., at 13). Proximate causation depends to a great extent on considerations of the fairness of imposing liability for remote consequences. The task of determining whether proximate causation exists in the limitless fact patterns sure to arise is best left to lower courts. But I note, at the least, that proximate cause principles inject a foreseeability element into the statute, and hence, the regulation, that would appear to alleviate some of the problems noted by the dissent. See, e. g., post, at 8 (describing "a farmer who tills his field and causes erosion that makes silt run into a nearby river which depletes oxygen and thereby [injures] protected fish").

In my view, then, the "harm" regulation applies where significant habitat modification, by impairing essential behaviors, proximately (foreseeably) causes actual death or injury to identifiable animals that are protected under the Endangered Species Act. Pursuant to my interpretation, Palila II" under which the Court of Appeals held that a state agency committed a "taking" by permitting feral sheep to eat mamane naio seedlings that, when full grown, might have fed and sheltered endangered palila--was wrongly decided according to the regulation's own terms. Destruction of the seedlings did not proximately cause actual death or injury to identifiable birds; it merely prevented the regeneration of forest land not currently inhabited by actual birds.

This case, of course, comes to us as a facial challenge. We are charged with deciding whether the regulation on its face exceeds the agency's statutory mandate. I have identified at least one application of the regulation (Palila II) that is, in my view, inconsistent with the regulation's own limitations. That misapplication does not, however, call into question the validity of the regulation itself. One can doubtless imagine questionable applications of the regulation that test the limits of the agency's authority. However, it seems to me clear that the regulation does not on its terms exceed the agency's mandate, and that the regulation has innumerable valid habitat related applications. Congress may, of course, see fit to revisit this issue. And nothing the Court says today prevents the agency itself from narrowing the scope of its regulation at a later date.

With this understanding, I join the Court's opinion.


* Justice Scalia suggests that, if the word "direct" merits emphasis in this sentence, then the sentence should be read as an effort to negate principles of proximate causation. See post, at 22, n. 5. As this case itself demonstrates, however, the word "direct" is susceptible of many meanings. The Court of Appeals, for example, used "direct" to suggest an element of purposefulness. See Sweet Home Chapter of Communities for a Great Oregon v. Babbitt, 17 F. 3d 1463, 1465 (CADC 1994). So, occasionally, does the dissent. See post, at 7 (describing "affirmative acts . . . which are directed immediately and intentionally against a particular animal") (emphasis added). It is not hard to imagine conduct that, while "indirect" (i.e., nonpurposeful), proximately causes actual death or injury to individual protected animals, cf. post, at 20; indeed, principles of proximate cause routinely apply in the negligence and strict liability contexts.