One of the things we often complain about here at The Constitution Study is Congress’ penchant for abdicating its lawmaking responsibility in favor of executive rules and regulations, and the abuses of the administrative state.  In this article we’ll review one of the few cases I’ve found where the supreme Court looked at the law and held a federal agency accountable.

The case in question is Weyerhaeuser Co. v. U.S. Fish & Wildlife Service.  The case stems from a designation by the U.S. Fish & Wildlife Service (later to be identified  as ‘Service’) of an area in St. Tammany Parish, Louisiana, as critical habitat for the dusky gopher frog. Weherhaeuser and a group of family land owners sued to have the decision changed for two reasons: First, because the dusky gopher frog cannot live on the land designated as critical habitat, and second, because the Service did not properly account for the economic impact of designating the land as critical habitat.  As the case wound its way through the lower courts, the plaintiffs were turned down because the courts found that critical habitat did not have to be habitat, and they could not review the Service’s discretionary decision about the benefits of designating critical habitats versus the economic impact.

In a rare 8-0 opinion of the supreme Court (Justice Kavanaugh did not take part in this case), the court held that, according to the law, critical habitat must be habitat, or at least habitable, to the species in question.  They also found that the application of discretion by federal agencies is exactly the type of case the courts are expected to review.

So why did this case grab our attention?  Because it is an excellent example of how judicial review should work and how the courts should apply the law.

What Does “Is” Mean?

In reading the opinion given by Chief Justice Roberts we find:

Our analysis starts with the phrase “critical habitat.” According to the ordinary understanding of how adjectives work, “critical habitat” must also be “habitat.” Adjectives modify nouns—they pick out a subset of a category that possesses a certain quality. It follows that “critical habitat” is the subset of “habitat” that is “critical” to the conservation of an endangered species.

As much as I love this paragraph, the fact that lawyers and judges need a remedial lesson in English says a lot about the state of our judicial system.  The fact that a case can go through both the district and circuit courts without anyone, apparently, looking at the simple English of the law should be a matter of shame for all of us.  How could so many allegedly smart people look at this case without recognizing that for something to be “critical habitat” it must first be “habitat”?  Chief Justice Roberts points out this simple logical deduction:

Section 4(a)(3)(A)(i), which the lower courts did not analyze, is the sole source of authority for critical-habitat designations. That provision states that when the Secretary lists a species as endangered he must also “designate any habitat of such species which is then considered to be critical habitat.” 16 U. S. C. §1533(a)(3)(A)(i) (emphasis added). Only the “habitat” of the endangered species is eligible for designation as critical habitat. Even if an area otherwise meets the statutory definition of unoccupied critical habitat because the Secretary finds the area essential for the conservation of the species, Section 4(a)(3)(A)(i) does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species

The lower courts simply ignored the law, not even considering it in their decision.  Since the law clearly states that for the Secretary (of the U.S. Fish and Wildlife Service) to designate any habitat critical, it must first be habitat.  The court vacated the judgement of the lower courts and returned the case to them for further review.  Strike 1 for the Federal Appeals courts.

Agency Discretion

Weyerhaeuser also asked the court to overturn the lower court judgement because the Service did not properly take into consideration the economic impact of their designation.

That provision requires the Secretary to “tak[e] into consideration the economic impact . . . of specifying any particular area as critical habitat” and authorizes him to “exclude any area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat.” 16 U. S. C. §1533(b)(2).

This is the part of the case that the lower courts simply ignored, stating that it was not eligible for judicial review.  However, as Roberts noted:

As we explained recently, “legal lapses and violations occur, and especially so when they have no consequence. That is why this Court has so long applied a strong presumption favoring judicial review of administrative action.” Mach Mining, LLC v. EEOC, 575 U. S. ___, ___–___ (2015) (slip op., at 7–8).

…

this case involves the sort of routine dispute that federal courts regularly review: An agency issues an order affecting the rights of a private party, and the private party objects that the agency did not properly justify its determination under a standard set forth in the statute.

This once again comes down to the idea of Congress providing discretion to executive agencies without sufficient guidelines on how to exercise it.  The Fish & Wildlife Service did follow the letter of the law:

The Service followed that procedure here (albeit in a flawed manner, according to Weyerhaeuser). It commissioned a report to estimate the costs of designating the proposed critical habitat, concluded that those costs were not “disproportionate” to the benefits of designation, and “[c]onsequently” declined to “exercis[e] [its] discretion to exclude any areas from [the] designation of critical habitat.”

The question before the court was: Is that decision “arbitrary, capricious, or an abuse of discretion”?  The land in question is referred to in the quote below as “Unit 1”.

Specifically, Weyerhaeuser contends that the Service improperly weighed the costs of designating Unit 1 against the benefits of designating all proposed critical habitat, rather than the benefits of designating Unit 1 in particular. Weyerhaeuser also argues that the Service did not fully account for the economic impact of designating Unit 1 because it ignored, among other things, the costs of replacing timber trees with longleaf pines, maintaining an open canopy through controlled burning, and the tax revenue that St. Tammany Parish would lose if Unit 1 were never developed.

There were a total of four (4) habitats designated as critical to the dusky gopher frog.  To compare the cost of losing one of those to the benefit of having all four is putting the government’s thumb on the scales of justice.  Remember, the land as it currently stands is not habitable for the frogs, so money would have to be spent to “terraform” the land and maintain it afterwards.  This also, apparently, was not considered in the Services economic impact study.

The supreme Court found that the lower courts’ decisions not to review this part of the case was flawed, and it was sent back for them to consider that question.  Strike 2 for the Federal Courts of Appeal.

Conclusion

I found this case interesting, in part for the absurdity of the case.  To me, this is not a case about a frog, but about government overreach and the cost, not only in dollars, but in liberty as well.  I wonder how much time, effort, and money was spent, both by the parties in the case and by the federal courts, answering a simple English question:  Does “critical habitat” have to be “habitat”?  How much has been wasted deciding if a decision of an executive agency can be reviewed or not?  How much of our tax money was spent trying to effectively take over control of private property that would do nothing to advance the stated purpose of protecting a frog?  I think that’s worth keeping in mind, especially when the next ridiculous regulation comes out and years have to be spent fighting it in court.

The other reason I found this case interesting was the rarity of having eight supreme Court justices agree that the law means exactly what it says in English.  It’s nice to read an opinion without having to bang my head against the wall because of the foolish ideas put forward by our judicial high priests.  In this case I’ll take the win and enjoy my day.