Federal agencies lay the groundwork to ignore the Supreme Court


In Weyerhaeuser v. U.S. Fish and Wildlife Service, the Supreme Court ruled that land designated by the U.S. Fish and Wildlife Service as “critical habitat” under the Endangered Species Act (ESA) must be habitable for the species the Service seeks to protect. But the Service recently dropped the “habitat” rule it adopted to conform to Weyerhaeuser. In doing so, he undermined the Supreme Court’s decision in Weyerhaeuser, ignored the Constitution’s separation of powers, and reinstated a regime of capricious habitat designations.

The ESA allows the Service to list endangered or threatened species and designate land as “critical habitat” for the species. A decade ago, the Service declared more than 1,500 acres of the Poitevent family’s Louisiana property as critical habitat for the endangered dark gopher frog. This designation would have restricted the family’s ability to use their land, potentially costing them millions of dollars in lost economic benefits.

But there was a problem: The frog hadn’t been seen anywhere in Louisiana for over 50 years. And individual dark gopher frogs could not have survived on the lands of Poitevents without significant modification. In other words, the land of Poitevent was not a “habitat” for the frog. After years of litigation, the Supreme Court made it clear in Weyerhaeuser that, under the plain meaning of the ESA, any critical habitat designation must first be the “habitat” of the protected species. As the court explained, according to the ordinary understanding of how the English language works, adjectives modify nouns, so a designated property must be habitat before it can be critical habitat.

But the ESA does not define “habitat” and the Supreme Court left it to the lower court or the Fish and Wildlife Service to define the term in accordance with the ESA text.

Prior to Weyerhaeuser, the agency — in what can only be described as a regime of regulatory adhocracy — never consistently defined what constitutes “habitat” under the ESA. Instead, relying on claimed “expertise” and a belief that the law enacts a broad “conservation purpose” to exclude all other purposes, she determined what private property she would designate in individual circumstances. In other words, the Service apparently invented it as it went along, effectively enacting a precautionary regulatory principle independent of the text of the statute. And Weyerhaeuser shows that this regime could lead to overbroad and unjustifiable habitat designations, potentially causing serious economic harm to landowners.

After Weyerhaeuser, the Service went through a process of developing notice-and-comment rules to define “habitat”. His rule cited Weyerhaeuser’s position and sought to implement the statute as drafted by Congress. By defining the term, the Service also provided the regulated public with essential guidance on how it would implement the ESA and limited its own ability to make case-by-case decisions.

President Biden, as part of his broader political agenda to use federal agencies to redo federal environmental law, ordered the Fish and Wildlife Service to repeal the rule defining habitat and thus return to the pre-Weyerhaeuser ad hoc regime. Thus, the Service abandoned the text of the ESA and announced its intention to return to a malleable “biological” definition of the habitat which it will define and redefine on a case-by-case basis. Only this approach, according to the Service, will be consistent with the general “conservation” objectives of the law.

Yet in doing so, the Service ignores the Supreme Court’s directive to apply the law as passed by Congress and instead seeks to self-aggrandize its authority at the expense of the rule of law. Unfortunately, executive agencies acting as circuit legislators relying on broad legislative objectives, rather than the text of a statute, are not isolated from critical habitat designations under the ESA.

Federal agencies have long relied on the broad objective of the Clean Water Act (CWA) to protect United States navigable waters from pollution to claim near-unlimited authority to act as federal planners of water use. lands. Indeed, these agencies claimed that they could regulate everything from ditches to seasonal puddles as “navigable waters” because these non-waters could, under certain circumstances, affect pollution levels in the navigable waters.

The Supreme Court is set to address the authority of the Environmental Protection Agency (EPA) under the CWA in the next term in Sackett v. EPA. In 2007, the Sacketts sought to build a single-family home on vacant land in a residential subdivision built near Priest Lake, Idaho. But soon after leading the way, they found themselves embroiled in a 15-year legal battle with the EPA over whether their property is navigable water under federal jurisdiction. In its brief to the Supreme Court in the Sackett case, the government repeatedly cites its interpretation of the general purpose of the CWA to justify the assertion of federal authority over private property which often—as is the case for the Sackett property — does not fall under any plausible definition of navigable waters.

The Supreme Court is expected to conclude that the EPA cannot regulate the ownership of the Sacketts. But, almost as important, it must provide a clear legal definition of what private property falls under the EPA’s authority under the law. If the court doesn’t give a definitive definition, it will provide the EPA with the opportunity to indulge in the same linguistic mischief the Fish and Wildlife Service uses to circumvent Weyerhaeuser.

The Constitution’s separation of powers requires federal agencies to implement laws passed by Congress by following the laws‘ text. When agencies can ignore this principle and redefine the meaning of a law on a case-by-case basis, it allows the executive to jiggle. The Fish and Wildlife Service reverted to this regime as part of the ESA; the Supreme Court should prevent this from happening under the CWA in Sackett.

Frank Garrison and Charles Yates are lawyers at Pacific Legal Foundation (PLF), a nonprofit legal organization that defends Americans’ freedoms when threatened by government excesses and abuses. PLF represented both Poitevents and Sacketts.


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