Endangered Frog Case Tees Up Regulatory Limits Dear to Kavanaugh

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By Alan Kovski

A U.S. Supreme Court spat over an endangered frog’s habitat seems tailor-made for nominee Brett Kavanaugh, who has shown skepticism throughout his career of federal agencies attempting to use their legal authorities in novel ways.

The case of Weyerhaeuser Co. v. U.S. Fish and Wildlife Service involves an argument over whether the Fish and Wildlife Service exceeded its authority under the Endangered Species Act in designating critical habitat on private land for an endangered frog. That designation could hamper development in St. Tammany Parish, La.

It is the first case scheduled to be heard by the Supreme Court at the start of the court’s next term Oct. 1. If Kavanaugh wins confirmation as quickly as Senate Majority Leader Mitch McConnell (R-Ky.) wants, he will be there for the oral arguments.

“The general impression is that he is, obviously, generally concerned about agency overreach,” Sam Kalen, a law professor at the University of Wyoming College of Law, told Bloomberg Environment.

A strict reading of the Endangered Species Act can constrain the flexibility of agencies to apply the best available science in ways that adapt to changing circumstances, Kalen said.

“And that’s going to come up in that critical habitat case,” Kalen said.

Shrimp and Frogs

Kavanaugh handed the Fish and Wildlife Service a loss at the U.S. Court of Appeals for the District of Columbia Circuit in 2011 in Otay Mesa Prop. L.P. v. Interior.

He wrote the opinion that found the agency failed to do a convincing job of justifying its reasons for designating 143 acres of private property as critical habitat for San Diego fairy shrimp, an endangered species.

That decision may have notable connections to Weyerhaeuser.

The Weyerhaeuser case involves Fish and Wildlife Service designation of 1,544 acres of private land in Louisiana as critical habitat for the dusky gopher frog even though the frog doesn’t exist there and the acres don’t currently have all of the characteristics the frog needs for survival.

Questions about Deference

Kavanaugh “puts federal agencies through their paces. He wants to make sure agencies are doing their work” and that they are “coloring between the lines,” said Jonathan Adler, a law professor at Case Western Reserve University.

“He’s not hostile to any particular type of regulation,” Adler said, adding that it isn’t a matter of being favorable or unfavorable to environmental regulation.

Kavanaugh has raised the issue of how tricky it can be to determine whether a regulator is following the law or stretching it.

In a keynote address to a symposium at Notre Dame Law School in February 2017, later published in the Notre Dame Law Review, Kavanaugh delved into the question of Chevron deference, the doctrine that courts defer to federal agencies when they use their expertise to interpret ambiguous parts of laws.

Ambiguity can vary depending on viewpoint, he suggested.

Chevron doctrine encourages agency aggressiveness on a large scale,” Kavanaugh said. “Under the guise of ambiguity, agencies can stretch the meaning of statutes enacted by Congress to accommodate their preferred policy outcomes.”

Merrick Garland’s Opposite

Kavanaugh said Chevron deference makes sense in certain circumstances, and Adler said Kavanaugh has not suggested courts should get rid of Chevron.

“I don’t think he would vote to overturn Chevron,” Adler said.

Gabriel Collins, a fellow in energy and environmental regulatory affairs at Rice University’s Baker Institute Center for Energy Studies, said Kavanaugh is “almost the polar opposite to his D.C. Circuit colleague (and former Supreme Court nominee) Merrick Garland, who was generally deferential to executive agency actions.”

Kavanaugh “is not likely to be deferential to agency rulemaking, particularly if it pertains to a far-reaching issue—for instance, emissions or water-related regulations with profound, nationwide effects,” Collins said in an email.

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