1 year ago

Is economically disastrous environmental regulation subject to judicial review?

By Damien M. Schiff Senior Attorney

So ask PLF attorneys on behalf of trade and property rights groups in a cert petition filed this week.  The case, Building Industry Association of the Bay Area v. United States Department of Commerce, concerns the critical habitat designation for a population of the North American green sturgeon.  The sturgeon is a species of fish listed as threatened under the Endangered Species.  In 2010, the National Marine Fisheries Service designated thousands of square miles of aquatic habitat—including San Francisco Bay and the Sacramento-San Joaquin Delta—as critical habitat for the sturgeon.

Critical habitat can have enormous negative economic consequences for property owners and local communities.  Because of this risk, Congress amended the Endangered Species Act to give the Service the authority to exclude otherwise eligible areas from critical habitat, if the benefits of exclusion would exceed the benefits of inclusion.  Notwithstanding this power and Congress’ clear direction, the Service decided for the green sturgeon designation that it would never exclude any area on account of economic impact, if the area fell within a so-called “high conservation value” zone.  Yet remarkably, the Service did in fact exclude over a dozen areas from such zones on account of excessive non-economic impacts.

Because the statute does not support the Service’s inconsistent and discriminatory approach, PLF filed suit on behalf of the Building Industry Association and the Bay Planning Coalition.  The trial court threw out the lawsuit on the ground that the Service’s decision whether to exclude an area from critical habitat cannot be reviewed in court.  The court emphasized that the statute says that the Service “may exclude,” not that it “must exclude.” The Ninth Circuit affirmed.  Neither court, however, recognized the fundamental principle of administrative law that, even when an agency has discretion to act, if the agency abuses that discretion, such abuse is subject to judicial check.

Our cert petition asks the Supreme Court to take up this case in order to defend he regulated public from economically harmful and irrational agency regulation.  The high court recently has shown significant interest in protecting the right of injured property owners to seek judicial review, e.g.Sackett v. EPA and U.S. Army Corps of Engineers v. Hawkes Co. We hope that the Court will continue to show that solicitude in the sturgeon’s case.

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