November 29, 2018

The Dusky Gopher Frog Forges Consensus on the Supreme Court

Justin Pidot Professor of Law at the University of Denver Sturm College of Law


On Tuesday, the Supreme Court decided Weyerhaueser Co. v. U.S. Fish & Wildlife Service in a minimalist decision written by Chief Justice Roberts for a unanimous court. (I joined an amicus brief in the case.). The result may telegraph more about the Chief Justice’s concern with the institution of the Supreme Court than about his views about the case itself.

Weyerhaueser involves the endangered dusky gopher frog, which teeters on the brink of extinction because humans have destroyed its habitat. In 2010, the Fish and Wildlife Service designated “critical habitat” for the frog, as the Endangered Species Act requires, including 1,500 acres where it had once lived, and with modest restoration work, where a viable population could return.

Landowners challenged the designation arguing that critical habitat cannot include lands requiring restoration, but only those that can sustain a species in their current state. The Fifth Circuit disagreed because the ESA defines “critical habitat,” and the definition does not include a “habitability requirement.”

The Supreme Court disagreed, explaining that “[a]ccording to the ordinary understanding of how adjectives work, ‘critical habitat’ must also be ‘habitat.’” To punctuate the point, the Chief Justice channels an elementary school teacher: “Adjectives modify nouns—they pick out a subset of a category that possess a certain quality.” The Court does, however, also include a cryptic sentence enclosed in parenthesis indicating that “[h]abitat can, of course, include areas where the species does not currently live, given the statute defines critical habitat to include unoccupied areas.” The Court then remanded to the Fifth Circuit to apply this rule of grammar. (The Court also resolved a wonky administrative law question about the availability of judicial review, but the issue is unimportant and its resolution unremarkable.)

What are we to make of this display of unanimity and judicial restraint? It’s possible—I think even likely—that the Chief Justice crafted a compromise to avoid a tie vote. The Court heard argument in Weyerhaueser during the term’s opening week and before Justice Kavanaugh’s confirmation, and he did not participate in the decision. Following Justice Scalia’s death, the justices similarly appeared to strive to avoid ties—at that time, I addressed some of the strategies that emerged in an essay, and to my eye this minimalist vacate-and-remand strategy resembles the disposition in Spokeo v. Robins. In light of President Trump’s ongoing criticism of federal judges, I imagine the justices feel an even greater obligation to avoid any appearance of the rank partisanship that plagues the other branches of our government.

The impact of the decision is unclear, in large part because the Court doesn’t tell us what it actually believes the ESA means. Does land that requires restoration count as habitat or not? A related question is even more consequential. Can the Service designate land as critical habit that will soon be rendered suitable for a species due to ecological changes resulting from climate change?

The decision also raises questions about statutory construction more generally. Ordinarily, when a statute defines a term, that definition carries the day, and the ESA defines the phrase “critical habitat.” The Court nonetheless analyzes the constitutive elements of “critical habitat” to supplement the statutory definition; the Court holds that the undefined word “habitat” places limitations on the defined phrase “critical habitat” that do not appear within the four corners of the ESA.

This isn’t the first time the Court has used the trick of disaggregating defined terms to limit the authority of federal environmental agencies. The Clean Water Act defines the phrase “navigable waters” to mean “the waters of the United States,” but in one of the Court’s most significant environmental law decisions, the Rapanos Court nonetheless held that “the qualifier ‘navigable’ is not devoid of significance.”

Taken together, Weyerhaueser and Rapanos suggest a possible new rule of statutory construction: Congress can only define with any certainty one word at a time. Statutes are, of course, full of defined phrases. The Court has not yet told us when we can simply rely on such statutory definitions and when we must search for independent meaning for each adjective and noun (and adverb and verb).

Justin Pidot is a Visiting Professor at the University of Colorado Law School and a Professor of Law at the University of Denver Sturm College of Law. He previously served as the Deputy Solicitor for Land Resources at the U.S. Department of the Interior during the Obama Administration and as an appellate lawyer in the Environmental and Natural Resources Division of the U.S. Department of Justice.