The new term of the United States Supreme Court got off to an inauspicious start in the important case of Weyerhaeuser v. United States Fish and Wildlife Service. At issue in the case is the Endangered Species Act of 1973 (ESA), which allows the government to take steps to protect endangered and threatened species from destruction. Weyerhaeuser involved the preservation of potential habitat for the dusky gopher frog, whose lifestyle requires living underground in areas covered by open-canopied pine forests, from which the frogs migrate to isolated, ephemeral ponds for breeding before returning home. These exacting conditions are not easily found, and the Fish and Wildlife Service (FWS) spent an inordinate amount of time, effort, and careful study to locate such a habitat. In this case, the FWS acted only after it conducted, as the majority in the Fifth Circuit noted, an exhaustive “economic analysis, two rounds of notice and comment, a scientific peer-review process including responses from six experts, and a public hearing.”

After its investigation concluded, FWS designated as critical habitat some 1,544 acres of privately-owned land in Louisiana. That land had been slated for timber harvesting, followed by residential and commercial development. The FWS made its designation even though only one such frog was found on these lands back in 1965. The ESA’s instruction to the FWS was to make sure that the site designated as critical habitat contains “those physical or biological features . . . essential to the conservation of the species.” The FWS read the term “essential” broadly to cover the proposed site, subject to two huge caveats. First, the designated space could not support the dusky gopher program in its current condition. Extensive site modification was required to make the area habitable for the frog. Second, FWS had no current plans for the needed site modification, and it had set aside no funds for its improvement. As a result, the site was in limbo. The Fifth Circuit majority protested that such critical habitat designations “do not transform private land into wildlife refuges” because they neither authorize the government to enter the land nor require the private owner to modify the property to populate it with members of the endangered species. But that sentence tells only half the story: the designation does put the land into legal limbo because its owners can no longer use it for its intended purposes unless they first obtain a permit under the Clean Water Act to alter the site, which can only happen if FWS approves of the change in use under the ESA. The plaintiffs alleged “that the resulting lost development opportunities could cost the landowners $34 million.” Those are social as well as private losses.

On this record, the Supreme Court had to decide whether to affirm the FWS’s designation. The oral argument before the Supreme Court on October 1, 2018, was dominated by dueling hypotheticals. Justice Kagan wanted to know from the landowners whether the designation of critical habitat could be accurately attached to a site as yet unused that might be rendered fit by a few “slight improvements,” such as digging holes in appropriate places. At the opposite pole, Chief Justice Roberts asked the government whether the term “critical habitat” was expansive enough to “build a giant greenhouse and plant the longleaf pines” for the frog to live in, say, Alaska.