Environmental -- 2018

Weyerhaeuser v. U.S. Fish and Wildlife Service   (U.S. Supreme Court)

Government overreach under the Endangered Species Act

The NAM filed an amicus brief to oppose government overreach under the Endangered Species Act (ESA) that restricts land use in the name of helping an endangered species that does not even live on the land. In 2001, the U.S. Fish and Wildlife Service (FWS) declared 1,544 acres of private property in Louisiana as "critical habitat" for the dusky gopher frog. The frog does not live on that property and could not even survive there under current conditions. Nonetheless, FWS declared the land as critical habitat because the frog could survive on the land if the land were significantly transformed by cutting down the trees, planting a different type of tree, and conducting yearly controlled fires to promote vegetation necessary for the frog's survival.

A critical habitat designation broadly hampers the productive use of one’s land. Owners of land designated as critical habitat face immediate and significant restrictions on their otherwise lawful use of that land, as well as expensive and time-consuming new procedural requirements on ongoing and future projects, litigation risk, and often a significant reduction in the property’s value. The broader consequences of FWS's position are frightening to imagine. With over 1,500 different birds, mammals, amphibians, fish, plants, and insects currently listed as either endangered or threatened, any land, infrastructure, or factory site could be forced to comply with the onerous restrictions that accompany a critical habitat designation.

To fight this regulatory overreach, the landowner sued in federal court to overturn FWS's critical habitat designation. The NAM's amicus brief in support of the landowner argues that FWS exceeded its statutory authority under the ESA and highlights how its actions impose significant harm and business uncertainty on manufacturers and other businesses.

On November 26, 2018, the Court issued a largely favorable decision for manufacturers. It remanded the question to the lower court of whether the propery at issue even qualifies as "habitat" for the frog (a question that suggests the answer is "no"), and ruled that an agency's critical habitat designation is subject to judicial review.

Related Documents:
NAM brief  (April 30, 2018)


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