This week, the Fish and Wildlife Service and the National Oceanic and Atmospheric Administration issued a rule rescinding the rule issued in 2020 defining “habitat” for the purposes of determining what constitutes “critical habitat” under the Endangered Species Act. You see, in a piece of expert legislative drafting in 1973, Congress defined the term “critical habitat” without defining “habitat” in the first place. Sigh.
This came to a head in 2018 in Weyerhaeuser v. USFW, in which the Supreme Court, in its wisdom stated that :
An area is eligible for designation as critical habitat under §1533(a)(3)(A)(i) only if it is habitat for the species.
The question in Weyerhaeuser was whether the FWS could designate land as critical habitat for the dusky gopher frog even if no dusty gopher frogs were actually present. I still don’t quite understand why the case even got to SCOTUS, because the ESA explicitly provides that:
The term “critical habitat” for a threatened or endangered species means—
(i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and
(ii) specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species.
It seems to me that the italicized language pretty clearly gives the Secretary precisely that authority. In any case, the Trump Administration seized on the Weyerhaeuser remand and promulgated a regulation in 2020 defining the term “habitat” and, in so doing, excluded areas which might be necessary to the survival of a species, if those areas do not currently or periodically do so. In other words, areas that could be restored would not qualify has “habitat”.
Based on the science as I understand it, the new rule is clearly appropriate. However, the decision to rescind the 2020 definition, but not replace it – and the agencies’ rationale – pretty much adds up to “we know it when we see it.”
We know it when we see it may in fact be the most scientifically justifiable approach to protecting critical habitat. However, if the Supreme Court uses its imminent decision in West Virginia v. EPA to revive the non-delegation doctrine, I wonder what it will think of ESA provisions that refer to an undefined word – “habitat” – when the agencies themselves concede that they cannot come up with a workable definition of the term.
I guess that: