Dec 5, 2018

Last week the United States Supreme Court issued its decision in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service regarding an agency determination that certain lands were a “critical habitat” for the endangered dusky gopher frog and could not be developed. While some contemporaneous accounts of the oral arguments anticipated a likely split along ideological lines, the Court’s eventual decision was a unanimous one that overturned the lower courts’ affirmation of the agency’s actions.

While those of us who parse language and logic for a living may have fist-pumped at the Court’s holding that one cannot designate an area a “critical habitat” without first determining the area to be “habitat,” the larger import of the decision is found in its discussion of the scope of judicial review under the federal Administrative Procedures Act (APA).

In this regard, the Court noted that the APA creates a “basic presumption of judicial review [for] one ‘suffering legal wrong because of agency action,’” which may be rebutted only if the relevant statute precludes review or if the action is “committed to agency discretion by law.” Below, the Fish and Wildlife Service contended, and the lower courts agreed, that the Endangered Species Act (ESA) commits to the agency’s Secretary’s discretion the decision not to exclude an area from the critical habitat designation. The Court noted the “tension” between the prohibition of judicial review for actions “committed to agency discretion” and the APA’s contrary command that courts set aside any agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Reviewing the relevant text of the ESA, the Court noted that the decision was not “wholly discretionary and therefore unreviewable.” Rather, the statute cabined the agency’s discretion and required that the agency consider economic and other impacts when making its decision. Thus, the Court described Weyerhaeuser’s claim as a “familiar one” in administrative law – i.e., that the agency purportedly did not appropriately consider all of the relevant factors that the statute sets forth to guide the agency in the exercise of its discretion. As a result, the lower courts had erred in simply deferring to the agency’s exclusion decision and failing to substantively review the contention that the agency had “ignored some costs and conflated the benefits” in rendering its decision.

The ultimate import of Weyerhaeuser will only be known in time, which has not stopped partisans on either side from hailing the decision as either the beginning of the end of the “Administrative State” or the end of wildlife as we know it. While it is likely neither of the above, the decision does put agencies on notice that the scope of federal judicial review is quite broad, and that few “discretionary” actions will be insulated from challenge under the APA moving forward.

About the Author:

David Warner | Centre Law & Consulting David Warner

David Warner is a seasoned legal counselor with extensive experience in the resolution and litigation of complex employment and business disputes. His practice is focused on the government contractor, nonprofit, and hospitality industries. David leads Centre’s audit, investigation, and litigation practices.




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