Clarification of “habitat” will close loophole in Endangered Species law

Written by Brian Gregg for Real Clear Policy
A Victory for Property Rights and Common Sense

Federal wildlife conservation officials are proposing, for the first time, to amend regulations that define what “habitat” means under the Endangered Species Act (ESA). It’s a clarification of law, and the closing of a loophole, that’s long overdue.

Despite the predictable outcry from environmental groups, the proposed habitat definition will likely help species conservation. The new definition simply states that if a species does not or cannot live in a certain area in its current state, it is not habitat. Moreover, the clarity provided by this new definition should decrease the amount of time and resources that federal agencies spend on defending (or attempting to avoid) lawsuits brought by activist groups. 

This new rulemaking is the latest instance of the Trump administration’s commendable efforts to streamline and reform the ESA and other major environmental statutes, such as the National Environmental Policy Act and the Bureau of Land Management’s grazing regulations. 

Of course, one wonders: why would the feds need to include such an obvious definition of “habitat” in the ESA? The answer is that this rulemaking was prompted at least in part by a 2018 Supreme Court decisionWeyerhauser v. U.S. Fish & Wildlife Service.

Thus, the proposed rule now offered by the feds essentially codifies the holding in Weyerhauser: you can’t have “critical” habitat unless you have habitat to begin with. And it must be actual habitat — land that is actually capable of supporting the species in question without modifying the habitat. Too bad it took a trip to the Supreme Court to force FWS to admit the obvious.

Weyerhauser concerned the Fish & Wildlife Service’s (FWS) management of the dusky gopher frog, a rare amphibian that lives in the swamps of the Mississippi Delta. Although the frog only lives in the State of Mississippi, FWS designated critical habitat on 1500 acres of private timber land across the state line in Louisiana — despite the fact that the frog hadn’t been seen in Louisiana in half a century. 

The impact of this might have cost up to $34 million in lost timber sales to loggers. What’s worse, the frog’s alleged critical habitat was not actually habitable because the area lacked necessary attributes such as open tree canopies. In short, the 1500 acres of private land that FWS declared to be under its management authority did not and could not support dusky gopher frog populations.

Thankfully, in a huge win for private property interests, the U.S. Supreme Court unanimously held against FWS. “According to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat,’” Chief Justice John Roberts sardonically wrote for the Court. 

Thus, the proposed rule now offered by the feds essentially codifies the holding in Weyerhauser: you can’t have “critical” habitat unless you have habitat to begin with. And it must be actual habitat — land that is actually capable of supporting the species in question without modifying the habitat. Too bad it took a trip to the Supreme Court to force FWS to admit the obvious.

You can read the full article on RealClearPolicy.com