Judicial Review Endangered: Decisions Not to Exclude Areas From Critical Habitat Should Be Reviewable Under the APA

Date01 April 2017
Judicial Review
Decisions Not to
Exclude Areas
From Critical
Habitat Should
Be Reviewable
Under the APA
by Damien M. Schi
Damien M. Schi is a Senior Attorney at the Pacic
Legal Foundation in Sacramento, California.
Under the Endangered Species Act, areas that otherwise
qualify as critical habitat “may” be excluded from a desig-
nation if the government determines that the benets of
exclusion would outweigh the benets of inclusion, and if
the exclusion would not result in the species’ extinction.
Federal courts have uniformly held that a decision not
to exclude an area is immune from judicial review under
the APA, pointing to that Act’s bar on judicial review
of agency action “committed to agency discretion by
law.” But contrary to the case law, application of this bar
should not depend on whether Congress has enacted per-
missive statutory language; instead, it ought to depend
on the nature of the administrative action itself. If an
agency action falls within a category traditionally held
to be immune from judicial review—for example, o-
cial immunity or political question—then the bar should
apply. Applying this understanding to the ESA, decisions
whether to exclude an area from critical habitat should be
reviewable, at least for conformity with the Constitution
and basic principles of rational agency decisionmaking.
In a 2015 decision, the U.S. Supreme Court declared
without controversy: “One would not say that it is even
rational, never mind ‘appropriate,’ to impose billions of
dollars in economic costs in return for a few dollars in health
or environmental benets.”1 Yet a string of precedents in the
lower federal courts threatens to undermine this basic prin-
ciple of administrative law.2 According to t hese decisions,
the a gencies that administer the Endangered Species Act
(ESA)3 may designate an area as “critical habitat” under the
Act, even if the designation would impose billions of dol-
lars in costs, or pose signicant threats to national security,
or produce other substantial and harmful consequences,
while achieving little or no environmental benet. e
agencies supposedly have this arbitrary power, according
to these decisions, notwithstanding that the U.S. Congress
amended the ESA specically to authorize the exclusion
of areas from designation when their inclusion would pro-
duce absurd cost-benet outcomes.
How could the courts reach a conclusion so at odds
with administrative law’s principal goal of ensuring ratio-
nal agency decisionmaking?4 ey have done so by ruling
that the power to exclude or to retain area s within critical
habitat has been “committed to agency discretion by law,”5
and therefore falls within “a very narrow exception6 to the
right of judicial review that the Administrative Procedure
Act (APA) establishes.7 ese courts highlight that the ESA
provides that the agencies “may,” but not must, “exclude
1. Michigan v. Environmental Prot. Agency, 135 S. Ct. 2699, 2707, 45 ELR
20124 (2015). I say “without controversy” because, although the decision
was 5-4, the principal dissenting opinion representing the views of all four
dissenting Justices agreed with the statement quoted in the text. See id. at
2714 (Kagan, J., dissenting) (“I agree with the majority—let there be no
doubt about this—that [the Environmental Protection Agency’s] power
plant regulation would be unreasonable if ‘[t]he Agency gave cost no
thought at all.’”) (quoting id. at 2706 (majority opinion)).
2. Cass R. Sunstein,       
    , 114 C. L. R. 167, 170
(2014) (describing as “a kind of mini-constitution for the regulatory state”
Executive Order No. 13563, which allows “agencies [to] proceed [with
regulation] only if the benets justify the costs and only if the chosen
approach maximizes net benets”).
3. 16 U.S.C. §§1531-1544.
4. See, e.g., Motor Vehicle Mfrs. Ass’n of United States, Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43, 13 ELR 20672 (1983) (“[T]he agency
must examine the relevant data and articulate a satisfactory explanation for
its action including a ‘rational connection between the facts found and the
choice made.’”) (quoting Burlington Truck Lines v. United States, 371 U.S.
156, 168 (1962)). For the reasons set forth in Parts IV through VI, critical
habitat exclusion decisionmaking does not fall into a conjectured “category
of agency decisions in which it is rational to be arbitrary.” Adrian Vermeule,
    , 44 J. L S.
S475, S478 (2015).
6. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 1 ELR
20110 (1971).
   
input, especially to Jonathan Wood. e author has litigated the
issues discussed here in several recent cases, as noted in Part III below.
Copyright © 2017 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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