气候变化领域集成服务门户

James Dinneen: It’s worth adding here that in general, the economic impact of critical habitat is a point of contention, and some studies suggest that the impact is often exaggerated. Either way, the official analysis in the frog case found there would be anywhere from no impact at all to a $34 million impact depending on what the owners decided to do with the land. But aside from the money issue, the landowner’s central argument was that the federal government had exceeded its authority by designating “critical habitat” in a place where the frog probably couldn’t survive without modifying what was there. Namely, Mr. Pointevent’s ponds, though properly ephemeral, were no longer surrounded by the longleaf pine savannahs the frogs need. They were surrounded by the dense loblolly pine trees of the Weyerhaeuser plantation. If any dusky gopher frogs were ever going to survive long-term there, some of Weyerhaeuser’s trees would have to be replaced. There might even have to be some controlled burning to keep things the way the frogs like it.

Tony Francois: So our argument was that this can t be designated as critical habitat, because it s not habitat.

James Dinneen: Of course, that leads to the key question here. What is habitat? That question would take the case all the way to the Supreme Court.

Justice Elena Kagan: Mr. Bishop, may — may I offer you a hypothetical just to understand the scope of your argument, which is a bit unclear to me?

James Dinneen: Here’s Justice Elena Kagan questioning Weyerhaeuser’s lawyer during oral arguments in October of 2018.

Justice Elena Kagan: So, in my hypothetical, there is a species which, like this one, is in only a single habitat, and for whatever reason, that habitat is no longer going to support the species. Disease has come, a predator has come, it s gotten too hot, it s gotten too cold, whatever it is … And there is no habitat that at the present moment — there is no other habitat that at the present moment is capable of conserving the species over the long term. But there is a habitat that, with only slight improvements, what the government calls reasonable efforts, can support the species. Okay? … Can the government designate that area as unoccupied, critical habitat?

Timothy S. Bishop: No, it has to be habitat.

James Dinneen: The lower courts had said something else. They had agreed with the Fish and Wildlife Service that an area could be considered essential to the conservation of a species even if the species couldn’t live there right away. That is it could be critical habitat even if it wasn’t habitat. How you defined habitat itself was beside the point.

Justice John Roberts: I have the opinion of the Court today in case 17-71

James Dinneen: But the Supreme Court, in a unanimous decision, saw it differently.

Justice John Roberts: We disagree.

James Dinneen: Here’s Chief Justice John Roberts.

Justice John Roberts: According to the ordinary understanding of how adjectives work, critical habitat must also be habitat. Adjectives modify nouns. They pick out a subset of a category that possesses a certain quality. It follows that critical habitat is the subset of habitat that is critical to the conservation of an endangered species.

James Dinneen: But after all that, the Court did not say what habitat actually is, leaving that to the lower courts. A few months later, before the lower court ruled on a definition, the Fish and Wildlife Service settled with Pointevent and the other landowners by removing the Louisiana habitat designation.

Collette Adkins: It was actually very, just very clean and clever of them, because we had gone into that session with such contention after the Kavanaugh hearings. But they came up with this really wonderful way of reaching consensus, that was very narrow. And we could have had a substantive ruling that would have really constrained the Endangered Species Act, but we escaped without any damage to the Act at all. And we knew that at the end of the day, the real battle was going to be on the ultimate definition.

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James Dinneen: The Supreme Court says, okay, we need a definition of habitat. Why can t we just use the dictionary definition? Or is there is there a clear definition from science?

Jason Rylander: Well, there isn t, as it turns out.

James Dinneen: This is Jason Rylander again from Defenders of Wildlife.

Jason Rylander: The dictionary definition of habitat is not particularly nuanced. And if you look at the scientific literature, there’s quite a few articles and discussions about what habitat means in that context as well, and no universal definition of the term.

James Dinneen: Like other commenters from the conservation community, Rylander argues that the definitions proposed by the Service in August are too restrictive, especially for species like the dusky gopher frog whose recovery will require restoring lost habitat.

Jason Rylander: There may be a species where, you know, all you need to do is make some changes to vegetation, or you need to, you know, restore a marsh area. Or you may, you know, anticipate that because of climate change, you can already see that a species range is moving, say, moving northward. And these are areas that are going to be necessary for its recovery. So I think it s increasingly likely that there are going to be species in the dusky gopher frog situation, where much of its habitat has already been wiped out. And just finding areas that are meaningfully restorable is going to be hard going forward.

James Dinneen: I asked Rylander to read an alternative definition of habitat he and Defenders of Wildlife proposed to the Fish and Wildlife Service:

Jason Rylander: Habitat is the area or type of site where a species naturally occurs, or that it depends on directly or indirectly to carry out its life processes, or where a species formerly occurred, or has the potential to occur and carry out its life processes in the foreseeable future. So it includes this sort of temporal idea of both where the species has been and where it s likely to be.

James Dinneen: While that definition is much broader than the proposed Fish and Wildlife definitions, Rylander says that this would not mean the Fish and Wildlife Service could designate critical habitat anywhere it wanted. Designations would still be limited by the requirement in the Endangered Species Act that the areas be “essential to the conservation of the species.” Others though are basically satisfied with the definitions proposed by the Fish and Wildlife Service.

John Anderson: We thought that the definition that was proposed by the Fish and Wildlife Service was good and sensible.

James Dinneen: This is John Anderson again from the Energy and Wildlife Action Coalition.

John Anderson: It really is essential, not just from my members’ perspective, but also property owners and the rest of the regulated community, that when we are designating critical habitat and habitat, that those speak to the needs of the species at that time of listing.

James Dinneen: According to Anderson, a broader definition like the one proposed by Rylander would risk raising too many boundaries to development without enough benefits for conservation. For instance, he described a situation where renewable energy development is hampered by critical habitat designations that are not, as he puts it, “right-sized.”

John Anderson: The Service has the ability to revise critical habitat designations. So if it is determined in the future, that a species is shifting their population outside of their historic range, by all means, let s talk about increasing or changing that. But if they cannot exist there today, I just don t think that there s a legal grounds for the Service to be able to say that those areas should have the same protections as areas that can be occupied today.

James Dinneen: Jake Li at the Environmental Policy Innovation Center sees the issue a bit differently. While he agrees the new definition would limit critical habitat, he thinks it would only impact areas where species don’t currently live, which only accounts for a small percentage of critical habitat designations.