The government also argues that the statute provides no meaningful standard for judicial review of the service’s decision not to exclude Unit 1 from the critical habitat designation. The ESA describes how the service may err in excluding areas from critical habitat, but does not describe how it may err in declining to exclude them. The discretionary nature of the service’s decision on exclusion – it “may” exclude areas from designation – indicates that the decision not to exclude is unreviewable. Even if the decision is reviewable, the service argues, the Supreme Court should either remand to the lower court for review under the abuse-of-discretion standard, or uphold outright the service’s decision, bearing in mind “the uniquely valuable habitat that Unit 1 would provide.”
The Center for Biological Diversity and the Gulf Restoration Network, respondents in the case along with the service, raise a threshold issue. They dispute that Weyerhaeuser has suffered an injury sufficient to support federal court jurisdiction. They argue that Weyerhaeuser has not shown that it is reasonably likely to incur concrete damage as a result of the service’s designation decision, observing that of 88,290 consultations on endangered species between 2008 and 2015, not one project was “stopped or extensively altered” by the government.
On the statutory question, these respondents maintain that Weyerhaeuser misstates or ignores the record and the findings made by the service. They argue that the ESA’s provisions on critical habitat clearly extend to areas not currently occupied by an endangered species; they do not even mention Chevron in their brief.
As to constitutional avoidance, they observe that Weyerhaeuser declined to present to the Supreme Court the direct constitutional claim it raised below, surmising that the “petitioner adjudged these ‘constitutional’ issues of greater value as a spectral presence in this case than as an actual one.” They go on to argue that the decision not to exclude Unit 1 from the designation “is not really about ‘reviewability’ in the abstract.” They posit that “’the decision not to exclude Unit 1 is really part and parcel of the Service’s decision to include it,’” and they assert that that decision is within the service’s discretion and that the service’s “reasoning is manifest and manifestly rational.”
Recommended Citation: 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/
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