Counting the Cost: Weyerhaeuser and Judicial Deference to Agency Interpretations Under the Endangered Species Act
| Publication year | 2018 |
| Author | by Philip Williams and Elena Idell |
by Philip Williams and Elena Idell*
"In framing a government . . . the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."1
"The plain intent of Congress in enacting this statute was to halt and reverse the trend toward species extinction, whatever the cost."2
"It is emphatically the province and duty of the judicial department to say what the law is."3
Whatever the cost. Words that arouse in us what may be an impulse to charge blindly, recklessly even, with a kind of perverted courage to a species of immolation—the embarrassment of the very thing to which we as attorneys swore allegiance: the Constitution. But if we are to compare ourselves to soldiers, devoted to the defense of something—the air our children breathe, abundant wildlife, the preservation of our majestic forests and sweeping landscapes—then we must begin with our oaths to faithfully discharge our duties in support of our constituting instruments. And when the fight is over, or merely done for the day, we must be able to return with our honor intact, having fulfilled our oath. So, respectfully, no: it's not whatever the cost.
This article is written in the context of the current political, social, and legal environment where republican institutions responsible for our progress as a nation— progress which has allowed us to climb Mr. Maslow's hierarchy to the point where most of us can focus on
things other than food and shelter—are threatened in what can only be described as an existential crisis of who we are as a people. Surely, one of those of institutions is how we protect the environment we want our great-grandchildren to inherit—the wonder we want them to experience when they witness, as your authors have, Banner Peak casting its shadow over the headwaters of the San Joaquin River. And surely, another of those institutions is an independent judiciary that checks the arrogation by any of the other branches of the power vested in Article III to say what the law is.
And you thought this was just about a frog in Mississippi.
On November 27, 2018, the Supreme Court published its opinion in Weyerhaeuser Company v. United States Fish and Wildlife Service. Plaintiff—Appellant Weyerhaeuser Company's suit against the United States had been consolidated in the Fifth Circuit with Markle Interests, LLC, et al. v. United States Fish and Wildlife Service, et al. The Fifth Circuit affirmed the lower court's upholding of Fish and Wildlife's designation of unoccupied critical habitat, with one judge dissenting, and then denied the petition for rehearing en banc, though six of fourteen judges voted to grant rehearing. Weyerhaeuser petitioned the Supreme Court for a writ of certiorari. The petition was granted, the Supreme Court certifying for review "whether 'critical habitat' under the ESA must also be habitat."5 Though some had downplayed the importance of the issues presented in Weyerhaeuser,6 what cannot be denied is that the Court picked up a case that involves a federal agency's interpretation of a statutory term in the Endangered Species Act ("ESA")—a decision that has tremendous institutional implications. The Court unanimously held that "an area is eligible for designation as critical habitat under [ESA] Section 4(a)(3)(A)(1) only if it is habitat for the species.7
As the Fifth Circuit panel opinion, the dissent, and the dissent from the denial of rehearing all make clear, the critical issue is whether the unoccupied land in Louisiana ("Unit 1") is essential for the conservation of the dusky gopher frog. However, the more important implication of Weyerhaeuser may be its effect on judicial review of federal agency interpretations under the framework articulated in Chevron, U.S.A., Inc. v. Natural Resources Defense Council.8
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A. Markle Interests, Round One: Stochasticity and Other ShibbolethsIn June 2016, the Fifth Circuit affirmed the lower court's judgment upholding Fish and Wildlife's designation of about 1,500 acres in Louisiana as uninhabited critical habitat for the dusky gopher frog. To designate an unoccupied area as critical habitat, Fish and Wildlife must determine that the designated areas are "essential for the conservation of the species."9
Fish and Wildlife concluded that:
Unit 1 is essential to the conservation of the dusky gopher frog because it provides: (1) Breeding habitat for the dusky gopher frog in a landscape where the rarity of that habitat is a primary threat to the species; (2) a framework of breeding ponds that supports metapopula-tion structure important to the long-term survival of the dusky gopher frog; and (3) geographic distance from extant dusky gopher frog populations, which likely provides protection from environmental stochasticity.10
The district court upheld the designation, reasoning "[Fish and Wildlife's] finding that the unique ponds located on Unit 1 are essential for the frog's recovery is supported by the ESA and by the record; it therefore must be upheld in law as a permissible interpretation of the ESA."11
The Fifth Circuit noted, as had the lower court, that because Congress did not define "essential" in the ESA, "Chevron deference is appropriate" for review of the Final Rule designating an area as unoccupied critical habitat for the dusky gopher frog.12 Note the quick jump from Chevron Step One: "[i]f the intent of Congress is clear, that is the end of the matter;"13 to Step Two: "if the statute is silent or ambiguous with respect to the specific statute, the question for the court is whether the agency's answer is based on a permissible construction of the statute."14 The premise seems to be that "essential," as an undefined term in the statute, is ambiguous, and therefore Fish and Wildlife's reasonable interpretation of that ambiguous term should be upheld. Lacking in the decision, however, is robust statutory analysis to determine that "essential" is in fact an ambiguous term.
The landowner Appellants argued that Unit 1 could not be designated "essential for the conservation of the species" because Unit 1 was not currently habitable, nor "currently supporting the conservation of the species in any way," nor reasonably likely to support the conservation of the species in the "foreseeable future." The Fifth Circuit asked "whether the [Appellants] have demonstrated that [Fish and Wildlife] interpreted the ESA unreasonably when it deemed Unit 1 'essential' for the conservation of the dusky gopher frog."15 The Fifth Circuit quoted the lower court's observation that "the ESA defines two distinct types of critical habitat, occupied and unoccupied; only occupied habitat must contain all of the relevant [physical or biological features]."16 Therefore the Fifth Circuit found that the "plain text of the ESA does not require Unit 1 to be habitable."17
Appellants also argued that Fish and Wildlife's interpretation of "essential" was unreasonable because Unit 1 "is not currently supporting the conservation of the species in any way and the Service has no reasonable basis to believe that it will do so at any point in the foreseeable future."18 Observing that the ESA defines "conservation" as "the use of all methods and procedures which are necessary to bring any endangered species . . . to the point at which the measures provided . . . are no longer necessary," the Fifth Circuit found that the ESA's critical habitat provisions do not require Fish and Wildlife to know when the dusky gopher frog will be conserved as a result of the designation.19 It therefore held that Fish and Wildlife had not "employed an unreasonable interpretation of the ESA when it found that Unit 1 was essential for the conservation of the dusky gopher frog without first establishing that Unit 1 currently supports, or in the foreseeable future will support, the conservation of the dusky gopher frog."20
In addition, Appellants argued the unreasonableness of Fish and Wildlife's interpretation of "essential" because that interpretation failed to place "meaningful limits" on Fish and Wildlife's power under the ESA. The Fifth Circuit observed that, under the regulations then in effect, Fish and Wildlife had made the threshold determination that the species' occupied habitat was inadequate before it could consider designating unoccupied habitat as critical.21 The Fifth Circuit dismissed the Appellants' proffered "parade of horribles" of the implications of giving Fish and Wildlife "nearly limitless authority to burden private lands with a critical habitat designation."22 Finally, the Fifth Circuit noted the ESA required Fish and Wildlife to base its findings on the "best scientific data available,"23 and observed the designation was based on the "scientific expertise of the agency's biologists and outside gopher frog spe-cialists."24 The Fifth Circuit stated that "if this scientific support were not in the record, the designation could not stand."25
The dissenting opinion insisted on addressing Chevron Step One, and suggested that Fish and Wildlife's construction "is not entitled to any deference because it goes beyond what the meaning of 'essential' can encompass."26 The dissent argued that the majority opinion's reasoning constructs a "tortured interpretation" of unoccupied critical habitat which can mean either:
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land with no physical or biological features essential to the conservation of the species that is not occupied by the species but could be modified to become habitable . . . only if there are virtually no other tracts similar to it, or land that is uninhabitable by the species but that has at least one...
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