Friday, September 28, 2018

Weyerhauser is Less Important than You Might Think

Dusty gopher frogOn Monday, the United States Supreme Court will hear argument in Weyerhauser v. United States, a case involving the critical habitat designation for the dusty gopher frog.  In some quarters, the case has been billed as a potential blockbuster, and the cert petitions and the Fifth Circuit dissenting opinions certainly presented it that way.  In reality, however, this ought to be a low-stakes case.  The reason why is straightforward: this case involves a fairly inconsequential regulatory provision and will affect only a small amount of land.

The core issue in Weyerhauser is whether the Fish and Wildlife Service appropriately designated as critical habitat a small area that the dusty gopher frog doesn’t currently occupy and probably couldn’t occupy without some land management changes.  The area contains ephemeral wetlands and pine forests, both of which frogs need to survive, but because the forests are managed for timber harvests and thus kept dense, they lack the open canopy that the frogs prefer.  The land’s private managers do not intend to allow those habitat conditions to return; instead, they would prefer to harvest timber or sell to developers.  A critical habitat designation, they have suggested, would preclude that development, and these limitations are symptomatic, they claim, of a widespread conflict between critical habitat designations and economic development.

But the actual effect of a Supreme Court decision favoring the landowners (or the Fish and Wildlife Service) will be much more modest.  Initially, this case will not put a stop to the practice of designating critical habitat.  That’s a statutory requirement, which for the moment at least is not going away.  The case also will not stop the practice of designating as critical habitat areas that species do not currently occupy.  The Endangered Species Act specifically defines critical habitat to include unoccupied areas that are essential to the conservation of the species, so the statutory basis for unoccupied habitat designations will remain even after the Supreme Court decides this case.  Instead, all that is at issue is the Fish and Wildlife Service’s and National Marine Fisheries Services’ ability to designate as critical habitat areas that aren’t presently suitable for use by the species.  That’s likely to be a very small designation of even the unoccupied habitat designations, and those unoccupied designations in turn are tiny in comparison to designations of occupied habitat.  In short, the holding will either nibble away at or maintain a small margin of overall critical habitat designations.

Additionally, critical habitat designations are generally of modest importance to both landowners and protected species.  If an area is designated as critical habitat, then federal agency actions that would adversely modify that habitat cannot proceed.  State, local, and private actions, however, face no additional regulatory constraint, unless they require federal funding or permits.  The vast majority of activities (including logging and most land development) on private land do not involve federal funding or permits, so a critical habitat designation makes essentially no change to the regulatory landscape.  Even where a federal nexus does exist, the legal landscape changes only slightly.  Federal agencies also are prohibited from taking discretionary actions that might jeopardize the continued existence of listed species, and that prohibition also sometimes protects species’ habitats, even if they are not designated as critical.  In fact, for a research project several years ago, I looked at several thousand “biological opinions” to see how often FWS or NMFS found that a project would cause adverse modification without also causing jeopardy.  I didn’t find a single one.  More recent studies have found that both jeopardy and adverse modification findings are nearly non-existent.  And another recent study that compared land use change rates in areas designated as critical habitat and in non-designated habitat areas have found only trivial differences.  That doesn't mean the designations are completely meaningless; agency biologists told me they did have a modest effect on negotiations over species protections.  But there's an enormous difference between the real-world effects and the rhetoric in, and surrounding, the case.

So why did the Supreme Court take this case?  The basic reason, I think, is that the Fifth Circuit dissents and the cert petitions did a good job of making critical habitat designations sound like federal land grabs that impose massive costs on regulated industries (the Fish and Wildlife Service also did itself no favors by adopting a cost-benefit analysis that puts prices on some far-fetched scenarios rather than considering what the agency actually does with critical habitat).  That sort of characterization is well-calculated to arouse the ire of the current Court.  And the Court’s eventual decision might well perpetuate that fiction.  But if the Court takes the time to understand the statutory provisions at issue, and it looks at the empirical data associated with their implementation, it instead may wonder why it took this case.

- Dave Owen

dusty gopher frog image from; photograph by John Tupy

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