Two Wrongs Don’t Make a Right for the Dusky Gopher Frog

Posted on December 3, 2018 by Jeffrey Porter

You don’t see a unanimous decision of the United States Supreme Court very often, especially in an environmental case.  But that’s what happened last week when the Court held that in order for an area to be a “critical habitat” of an endangered species, it first has to be a habitat.

The case is Weyerhaeuser Company v. United States Fish and Wildlife Service, et al, 586 U.S.      , (November 27, 2018) and it revolves around 1500 acres in Louisiana where the dusky gopher frog, an endangered species, once lived but hasn’t been seen for over a half century.   The United States Fish and Wildlife Service designated the area as “critical habitat” for the endangered frogs even though everyone agreed that they could not live there without “some degree of modification,” including replacing the timber plantation currently occupying the area with a different type of forest, something the property owner, Weyerhaeuser, did not want to do.  The District Court upheld the Fish and Wildlife Service’s “critical habitat” designation and a divided Fifth Circuit Court of Appeals did as well.

The Supreme Court sent the case back to the Fifth Circuit for reconsideration in light of the Court’s holding that an area can be designated as “critical habitat” of an endangered species only if it is first actually a habitat for that species.  While that certainly makes sense, there are two other less obvious aspects of its decision that are worthy of note.

First, although the Endangered Species Act requires the designation of “critical habitat” for an endangered species at the same time the species is listed as an endangered species, the dusky gopher frog was listed in 2001, when there were only 100 of them left at a single pond in southern Mississippi, and the Fish and Wildlife Service didn’t designate any “critical habitat” for them until 2010, after it was sued by the Center for Biological Diversity for failing to do what the law requires.   This disregard by an agency of the Federal Government of its unambiguous statutory mandate is at least as disturbing as its misapplication of the law when it was forced to honor that mandate.   While two wrongs don’t make a right, the first blatant wrong should not be lost in the shuffle.

Second, the Supreme Court went to great lengths to make clear that the courts can, and should, review the Fish and Wildlife Service’s decision not to exclude an area from a “critical habitat” designation even though the statute leaves the decision of whether or not to exclude an area to the agency’s discretion.  In its unanimous opinion, the Supreme Court said that courts “must assess whether the agency’s exercise of that discretion was based on consideration of the relevant factors, including costs and benefits.

It is striking that the Supreme Court opinion went this far since it is pretty clear from the record that the area in question does not qualify as “critical habitat”, and so whether or not it would be appropriate to exclude that area is likely irrelevant in this case.   Indeed, it is hard not to read this substantial part of the Court’s opinion without wondering about the future of the 35 year old Chevron doctrine of deference to agencies which touches every aspect of environmental law, and not just dusky gopher frogs.

Can We Really Expect An Administrator Not To Administrate?

Posted on May 19, 2017 by Jeffrey Porter

This month EPA Administrator Scott Pruitt announced that he will personally pass judgment on any Superfund remedy estimated to cost more than $50 million.  Revisions to CERCLA Delegations of Authority 14-2 Responses and 14-21A Consultations, Determinations, Reviews and Selection of Remedial Actions at Federal Facilities, May 9, 2017.

Administrator Pruitt’s announcement begins with his unequivocal assurances that the “Superfund program is a vital function” of EPA, and that he is taking this action “to facilitate the more-rapid remediation and revitalization of contaminated sites and to promote accountability and consistency in remedy selection.”

Skeptics fear that Administrator Pruitt has some other secret objective.   But no one can seriously argue that this isn’t Administrator Pruitt’s decision to make.  The Superfund statute unequivocally says “[t]he President shall select appropriate remedial actions determined to be necessary” in accordance with the statute and the implementing regulations, and “which provide for cost-effective response.”  42 U.S.C. §9621(a).  The implementing regulations unequivocally delegate that responsibility to Administrator Pruitt  (well, to be precise, it is theoretically possible that another federal agency or a state can be a “lead agency” under the regulations but, in that unlikely case, the Administrator’s May 9th decision presumably wouldn’t apply).  

After all, it was a perceived need for prompt federal action to clean up the most complex contaminated sites in our country that drove the enactment of the Superfund statute over thirty-five years ago.  Because Congress perceived that need, the statute limits the ability of anyone, including state and local governments, to interfere with the selection and implementation of a Superfund remedy.

Over the decades, the contaminated sites posing the most immediate concern have been addressed, sites that would never have been prospects for Superfund listing thirty years ago have found their way into the program, and the Superfund statute has been interpreted, and reinterpreted, in regulations, countless judicial decisions, and EPA guidance documents.   If those regulations, judicial decisions and guidance documents have one thing in common, it is that they vest in EPA the maximum decision-making discretion permitted by the statute.

Because the sites posing the most immediate concern have been addressed, and what was once new is now the subject of thousands of pages of regulations, judicial decisions and guidance documents, anyone familiar with the Superfund program has to agree that regional program staff have, over the decades, been increasingly left mostly alone to make remedial decisions costing hundreds of millions of dollars.

And, as someone who has practiced in this area of environmental law for almost thirty years, I think it is equally clear that regional decision-making has attempted to soften the effect of Congress’s unambiguous statement of its intention that no one, including state and local governments, stands in the way of Superfund remedies by local consensus building, and that what Administrator Pruitt calls “consistency” has suffered as a result.

As a life-long Democrat, I have plenty of concerns about the Trump Administration’s environmental agenda.  But Administrator Pruitt has been anything but obtuse about his support of aspects of that agenda that concern me so I’m going to take him at his word regarding his intentions for the Superfund program, including because increased accountability and consistency in the Superfund program would be a very good thing.