In frog habitat ruling, justices rightly hold agencies accountable

Administrative law is an arcane subject, but determining when and how courts review agency decision-making tremendously affects Americans’ day-to-day lives and freedoms. A ruling issued last week by the U.S. Supreme Court strikes a blow for individual liberty and gives citizens new safeguards against administrative agency abuse.

In Weyerhaeuser v. U.S. Fish and Wildlife Service (FWS), the court ruled unanimously that the FWS can only designate areas as “critical habitat” for the dusky gopher frog under the Endangered Species Act if the areas first qualify as “habitat” — that is, areas where the frog could actually survive without significant human intervention. This victory limits the federal government’s ability to conscript private landowners into unrealistic schemes to preserve species without just compensation to the landowner.

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But the importance of this Supreme Court decision extends beyond environmental protection. It also contains an important defense of judicial review of decisions made by executive branch agencies — a critical step in holding those agencies accountable. Ultimately, this defense of judicial review may end up being the most important part of this ruling.

In this case, the analysis focuses on the provision of the Endangered Species Act that gives the FWS authority to exclude areas from critical habitat if the costs exceed the quantifiable benefits. Congress added this provision to give the FWS the ability to reduce the economic impact of endangered species decisions.

With respect to the dusky gopher frog’s critical habitat designation, Pacific Legal Foundation’s landowner clients and Weyerhaeuser Company argued that the FWS should have excluded their timberland from the designation. We pointed out that, by the government’s own estimate, the designation would cost the landowners upward of $30 million without producing any quantified conservation benefits.

The district court and the Fifth Circuit ruled against us, not because of this cost/benefit issue, but rather on the ground that federal courts have no power to review the FWS’s decision. Until today, that holding was consistent across all the lower federal courts, based largely on the fact that the Endangered Species Act states that the FWS “may exclude.” In other words, because the statute doesn’t say “must” or “shall,” these courts concluded that the FWS decision is “committed to agency discretion by law” — and therefore not subject to any judicial review.

In its decision, the Supreme Court rejected this wrongheaded approach. Chief Justice John Roberts’ majority opinion explains that judicial review of administrative action is the norm. Courts, therefore, should be “skeptical” of agency claims of unreviewable discretion, Roberts argued, especially when dealing with decisions “affecting the rights of a private party.”

The court emphasized that the complaint that the FWS did not reasonably consider costs and benefits “is the sort of claim that federal courts routinely assess when determining whether to set aside an agency’s decision as an abuse of discretion.”

This is more than an esoteric question of administrative law — it’s an important victory for freedom and agency accountability. Nowadays, most government infringements of liberty occur as the result of unaccountable bureaucratic rule-making and adjudication by agencies. Perhaps the worst form of judicial deference, lamentably common in the lower federal courts, is the deference of not reviewing agency action at all.

Those of us who consider the massive regulatory state as a threat to constitutional rights have criticized theories of judicial deference to agency decision-making. The Chevron doctrine, based on a 1984 Supreme Court ruling, is the most prominent of these theories — but the judicial abdication the court now has forsworn was even worse.

It’s understandable that executive branch bureaucracies might prefer to exercise their powers with maximum discretion and minimal oversight — understandable, but not acceptable under our constitutional system of checks and balances.  

Thankfully, the Supreme Court has consistently and vigorously resisted agency efforts to override the rights of injured citizens. Sackett v. EPA and U.S. Army Corps of Engineers v. Hawkes Co. are two unanimous decisions in which the Supreme Court rejected agency arguments against judicial review. The Weyerhaeuser decision continues this encouraging trend. 

Damien Schiff is a senior attorney for Pacific Legal Foundation, which litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.