By Daniel Strellman*
Contrary to the anticipation of many, the oral argument in Weyerhaeuser Co. v. US Fish & Wildlife Service scarcely touched on a core doctrine in administrative law: Chevron deference.[i][ii] The fact that the Supreme Court thought it unnecessary to discuss Chevron, despite it being a material basis for the 5th Circuit’s opinion below, could signal that the Supreme Court is reluctant to rely upon Chevron. This possibility is not far-fetched, as Justices Gorsuch,[iii] Thomas,[iv] and Kavanaugh[v] have expressed or hinted at their desire for Chevron to be overturned or otherwise ignored. However, it could also be the case that the Court—contrary to the 5th Circuit—simply thinks Weyerhaeuser does not involve ambiguous or absent congressional intent and, thus, Chevron does not apply. Based on the statutory text at issue, this latter explanation appears to be true. While there are many reasons to fear the demise of Chevron from the current Supreme Court, Weyerhaeuser need not be one of them.
To understand why the Court did not need to apply Chevron deference in this case, this article will mention the facts in Weyerhaeuser, briefly explain Chevron deference, and assess whether congressional intent is absent or ambiguous as to the terms “essential” and “habitat” in the Endangered Species Act (“ESA”).[vi] This article contends that the statutory language points to a single, cohesive understanding of congressional intent, which gives the Court no cause to rely upon Chevron.
The U.S. Fish and Wildlife Service (“FWS”) designated land in Louisiana (“Unit 1”) owned by Weyerhaeuser Co. as critical habitat for the dusky gopher frog (“DGF”).[vii] The DGF has not lived in Unit 1 since the 1960s and is currently found in only one pond in Mississippi.[viii] Unit 1 contains rare ephemeral pools essential for DGF breeding but lacks the necessary open tree canopy for DGFs. [ix] Thus, Unit 1 requires some restorations to be habitable for the DGF. [x] Weyerhaeuser Co. intended to profit off the land via logging and residential building, so Weyerhaeuser sought injunctive and declaratory relief in the Eastern District of Louisiana.[xi] Faced with cross motions for summary judgment, the district court ruled in favor of the FWS.[xii]
Weyerhauser appealed to the 5th Circuit Court of Appeals, which affirmed the district court’s ruling 2-1 in favor of the FWS.[xiii] The 5th Circuit denied that the FWS had acted arbitrarily and capriciously by designating Unit 1 as critical habitat, ruling that that land can be “essential” under the ESA even if the land is not yet entirely habitable.[xiv] Under Chevron, the 5th Circuit deferred to the FWS’s interpretation of “essential.”[xv]
Chevron deference is a bipartite test from the eponymous decision that works as follows: If congressional intent in a statute is clear, then a court must enforce that intent upon the administrative agency before it.[xvi] If Congress’s intent in a statute is ambiguous or absent as to an issue, then a court should defer to the agency’s interpretation[xvii] unless the agency’s interpretation is arbitrary or capricious, contrary to the constitution, in excess of statutory jurisdiction, contrary to legal procedure, or substantially unwarranted by the facts or evidence.[xviii]
In this case, the question of whether Chevron applies depends on whether Congress’s intent is ambiguous or absent in its use of two terms in the ESA: “essential” and “habitat.” The meaning of “essential” is pivotal where the ESA allows the designation of critical habitat on land “essential for the conservation of the species” (emphasis added).[xix] “Habitat” is also a critical term, as the Secretary of the Interior or of Commerce has the discretion to determine a species to be endangered or threatened, thereby designating any “habitat” of that species as critical. However, neither “habitat” nor “essential” is defined by the statute.[xx]
Petitioner, Weyerhaeuser Co., argues that Unit 1 is not “essential” because it is not a viable DGF habitat in its current state and, therefore, cannot be essential for the conservation of the species.[xxi] Weyerhaeuser also argues that the phrase “any habitat” precludes Unit 1 from a critical habitat designation.[xxii] The ESA explicitly authorizes the designation of any habitat of an endangered species as critical habitat.[xxiii] If Unit 1 is not currently a viable habitat of the DGF, then it cannot be designated as critical habitat under 16 U.S.C. § 1533(a)(3)(A)(i), Weyerhaeuser claims.[xxiv]
Respondent, the FWS, argues that the ephemeral ponds found on Unit 1 are incredibly rare and essential to the conservation of the DGF, because the DGF cannot breed without such ponds.[xxv] FWS also argues that “any habitat” is not intended to refer to only areas currently occupied by the DGF according to the ESA.[xxvi]
First, we must determine whether congressional intent is ambiguous or absent as to the term “essential” for the conservation of the species. Ephemeral ponds are incredibly rare—very few such ponds exist in the United States.[xxvii] These ponds, which are found on Unit 1, are necessary for the DGF to breed; if DGFs cannot breed, they will die out. If a species will die without something, then that thing is essential. If a species has all the things it needs to survive, those things are sufficient. Here Weyerhaeuser appears to conflate sufficiency with necessity. In its current state, Unit 1 contains insufficient, but essential, habitat for the DGF. Land essential to (i.e., necessary for) the conservation of the DGF need not be entirely sufficient for the conservation of the species. In the ESA, Congress used the word essential, which means necessary but does not mean sufficient. Using a term with a distinct, plain meaning that can be clearly applied indicates unambiguous congressional intent. Land that is essential, but not necessarily sufficient, to the conservation of the DGF can be designated as critical habitat based on the plain meaning of the terms used in the statute. Therefore, it is clear that congressional intent is neither absent nor ambiguous in regard to the term “essential.”
Second, we must determine whether congressional intent is ambiguous or absent from the term “habitat.” If the FWS can only designate land already populated by an endangered species as critical habitat, then Unit 1 could not be designated as critical habitat. However, the ESA explicitly allows areas not occupied by a species to be designated as critical habitat.[xxviii] Thus, Weyerhaeuser cannot be correct that “habitat” in 16 U.S.C. § 1533(a)(3)(A)(i) is intended to confine critical habitat designations to areas currently occupied by the species. It defies all logic to say that 16 U.S.C. § 1532(5)(A)(ii) would explicitly include “areas outside the geographic area occupied by the species” as viable areas for critical habitat designation while also intending that the Secretary could only designate current habitats as a species for critical habitat according to 16 U.S.C. § 1533(a)(3)(A)(i). Current habitats are occupied by the species; therefore, areas not occupied by the species cannot be current habitats. Weyerhaeuser’s attempted extrapolation of “habitat” ends in logical contradiction with the plain meaning of the statute. Where a statute explicitly states a power in clear language, an attempted interpretation that is logically contradictory to the plain meaning of the statute does not indicate ambiguity in the statute—only ambiguity in the reasoning of the interpreter. Thus, Weyerhaeuser’s reading does nothing to contest the clear congressional intent found in the plain meaning of the words in the statute; congressional intent is present and unambiguous concerning “habitat” in the ESA.
After examining the terms that could be ambiguous, it is clear that congressional intent is neither absent nor ambiguous in the ESA in regard to the designation of critical habitat. It is clear from the wording of the ESA that land not occupied by a species may be designated as critical habitat so long as it is essential to the conservation of the species. Thus, the FWS’s decision to designate Unit 1 as critical habitat was a legally permissible administrative action, which requires no Chevron deference. Therefore, the absence of Chevron deference from Weyerhaeuser was appropriate and does not signal the dissolution of that doctrine. Other cases may indicate a desire to move away from Chevron, but Weyerhaeuser is not one of them. This dusky gopher frog simply did not need a Chevron.
*Daniel Strellman is a Junior Editor for MJEAL and can be reached at firstname.lastname@example.org.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[i] Transcript of Oral Argument, Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., (No. 17-71), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2018/17-71_4f15.pdf [hereinafter Transcript of Oral Argument].
[ii] See e.g. Chevron, U.S.A., Inc. v. Nat. Res. Def Council, Inc., 467 U.S. 837 (1984).
[iii] See, e.g., Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149-58 (10th Cir. 2016) (Gorsuch, J. concurrying)( proclaiming then Judge Gorsuch’s desire to see Chevron overturned).
[iv] See, e.g., Michigan v. E.P.A., 135 S. Ct. 2699, 2712-14 (2015) (Thomas, J. concurring) (urging the Court to re-evaluate its deference to administrative agencies’ interpretations of statutes).
[v] See, e.g., Brett M. Kavanaugh, Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev. 1907, 1911-14 (2017) (Kavanaugh’s address at Notre Dame Law School included his desire to get rid of Chevron deference). Justice Kavanaugh did not hear oral argument in Weyerhaeuser and likely will not take part in the decision.
[vi] See 16 U.S.C. § 1532(5)(A)(ii) (2018) (the statute provides a definition for the term “critical habitat” that is interpreted in the decision).
[vii] Lisa Heinzerling, Argument preview: Justices to consider critical-habitat designation for endangered frog, SCOTUSblog (Sep. 24, 2018, 11:20 AM), http://www.scotusblog.com/2018/09/argument-preview-justices-to-consider-critical-habitat-designation-for-endangered-frog/.
[viii] Robert Barnes, The Hapless Dusky Gopher Grog Divides the Supreme Court, Wash. Post (Oct. 1, 2018), https://www.washingtonpost.com/politics/courts_law/the-hapless-dusky-gopher-frog-divides-the-supreme-court/2018/10/01/3d63b216-c5a0-11e8-b1ed-1d2d65b86d0c_story.html?utm_term=.509d7059fef1.
[ix] Heinzerling, supra note 6.
[xi] Weyerhaeuser Company v. United States Fish and Wildlife Service, Oyez.com, https://www.oyez.org/cases/2018/17-71 (last visited November 17, 2018).
[xiii] Markle Interests, L.L.C. v. U.S. Fish & Wildlife Serv., 827 F.3d 452, 480 (5th Cir. 2016).
[xiv] See Markle, 827 F.3d at 464-73.
[xvi] Chevron, 467 U.S. at 842-43.
[xvii] Id. at 843.
[xviii] 5 U.S.C. § 706(2) (2018).
[xix] 16 U.S.C. § 1532(5)(A)(ii) (2018).
[xx] 16 U.S.C. § 1532 (2018).
[xxi] See Transcript of Oral Argument, at 17-18.
[xxii] See Transcript of Oral Argument, at 3-4.
[xxiii] 16 U.S.C. § 1533(a)(3)(A)(i) (2018).
[xxiv] See Transcript of Oral Argument, at 3-5.
[xxv] See Transcript of Oral Argument, at 42-43.
[xxvi] See Transcript of Oral Argument, at 28-60.
[xxvii] Heinzerling, supra note 6.
[xxviii] 16 U.S.C. § 1532(5)(A)(ii) (2018).