Weyerhaeuser Update: Critical Habitat Should Actually Be Habitat
by Transect Team, on Dec 3, 2018
The Supreme Court’s Limited Ruling on Critical Habitat and the Endangered Species Act
As we wrote about in October, the Supreme Court heard arguments in Weyerhaeuser v. USFWS, a case that addresses whether the government can designate “critical habitat” to protect an endangered species if the species is no longer found in that area. The Supreme Court considered whether the US Fish and Wildlife Service can use the Endangered Species Act to expand a species’ critical habitat to areas where that species could, but currently doesn’t, live, and also whether the Service must consider financial consequences if private lands are necessary to prevent the extinction of a species. On November 27th, the Court set aside the lower court ruling that afforded protection to an area where threatened animals do not currently live but might one day with significant changes, thereby limiting the reach of the Endangered Species Act.
The Supreme Court’s Ruling
The Supreme Court justices, in a unanimous but narrowly written decision, questioned whether Weyerhaeuser’s Louisiana parcel could be deemed under the law as a “critical habit” for the endangered frogs who might be able to live there in the future only if some trees were removed. This represents a partial victory for development companies that challenged the broad habitat protections imposed by the U.S. Fish and Wildlife Service.
However, the justices did not decide whether the Louisiana area could instead be a protected habitat. Instead, they sent the case back to the 5th Circuit Court in New Orleans to reconsider the matter and make a final decision.
Most importantly, Chief Justice John G. Roberts Jr. said in his opinion that the “critical habitat” of an endangered species “must also be a habitat.” The chief justice agreed with Weyerhaeuser that the scope of the law was limited. “Only the ‘habitat’ of the endangered species is eligible for designation as critical habitat,” Roberts said. “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, (the law) does not authorize the secretary to designate the area as critical habitat unless it is also habitat for the species.”
But he also said the law itself does not define the crucial word “habitat,” and he said the 5th Circuit should decide that issue.
Roberts also agreed with Weyerhaeuser that the 5th Circuit should weigh the “economic impact” before ruling on the designation of the Louisiana tract as a protected habitat.
Environmentalists stressed the limited nature of this ruling and left open the possibility that the Louisiana habitat could win protection when the case is reconsidered by the 5th Circuit.
“While we’re disappointed, the ruling doesn’t weaken the mandate to protect habitat for endangered wildlife,” said Collette Adkins, a lawyer for the Center for Biological Diversity. “We’re hopeful the 5th Circuit will recognize the importance of protecting and restoring habitats for endangered wildlife.”
How the 5th Circuit will rule based on the Supreme Court opinion, and how these decisions will affect critical habitat throughout the country, is yet to be seen. Critical habitat is everywhere, and more is proposed each week. But it doesn’t have to be overwhelming to keep up with it all. At Transect, we track existing and proposed critical habitat, and we notify you if your project crosses either – giving you peace of mind and a plan. Sign up today to start monitoring your projects.