Amicus Curiae Brief — Weyerhaeuser Company, Petitioner v. United States Fish and Wildlife Service, et al.

NO. 17-71

In the Supreme Court of the United States

WEYERHAEUSER COMPANY,

v.

Petitioner,

UNITED STATES FISH AND WILDLIFE SERVICE, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF AMICI CURIAE COALITION FOR A

SUSTAINABLE DELTA, SAN LUIS & DELTA-MENDOTA

WATER AUTHORITY, AND WESTERN GROWERS

ASSOCIATION IN SUPPORT OF PETITIONER

PAUL S. WEILAND

ROBERT D. THORNTON

NOSSAMAN LLP

18101 Von Karman Avenue

Suite 1800

Irvine, CA 92612

(949) 833-7800

pweiland@nossaman.com

rthornton@nossaman.com

Counsel for Amici Curiae

Coalition for a Sustainable

Delta and Western Growers

Association

DANIEL J. O’HANLON

Counsel of Record

KRONICK, MOSKOVITZ,

TIEDEMANN & GIRARD

400 Capitol Mall, 27th Fl.

Sacramento, CA 95814

(916) 321-4500

dohanlon@kmtg.com

JON D. RUBIN

REBECCA R. AKROYD

SAN LUIS & DELTA-MENDOTA

WATER AUTHORITY

400 Capitol Mall, 28th Fl.

Sacramento, CA 95814

(916) 321-4519

jon.rubin@sldmwa.org

rebecca.akroyd@sldmwa.org

Counsel for Amicus Curiae

San Luis & Delta-Mendota

Water Authority

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

THE JUDICIARY HAS A CONSTITUTIONAL

DUTY TO INTERPRET THE LAW . . . . . . . . . 4

A. JUDICIAL REVIEW OF AGENCY

DECISION-MAKING IS ESSENTIAL . . . . 4

B. THE EXPANSION OF THE CHEVRON

DOCTRINE UNDERMINES JUDICIAL

REVIEW OF AGENCY DECISIONMAKING . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II.

THE REFUSAL OF THE JUDICIARY TO

REVIEW AGENCY TECHNICAL

DETERMINATIONS IS BASED ON AN

O VER- EX PANSIVE READING O F

BALTIMORE GAS & ELECTRIC AND IS

IMPROPER . . . . . . . . . . . . . . . . . . . . . . . . . . 12

III.

TVA V. HILL DOES NOT JUSTIFY

READING THE ESA AS SUPPORTING

WHATEVER INTERPRETATION

MAXIMIZES SPECIES PROTECTION . . . 15

IV.

AGENCY APPLICATION OF THE ESA

WITHOUT THE BENEFIT OF EFFECTIVE

JUDICIAL REVIEW CAN HAVE

SIGNIFICANT CONSEQUENCES ON

THE USE OF LAND AND WATER

RESOURCES . . . . . . . . . . . . . . . . . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

ii

TABLE OF AUTHORITIES

CASES

ALCOA v. Adm’r, Bonneville Power Admin.,

175 F.3d 1156 (9th Cir. 1999) . . . . . . . . . . . . . . . 6

Babbitt v. Sweet Home Chapter of Communities

for a Great Oregon, 515 U.S. 687 (1995) . . . . . . 16

Baltimore Gas & Electric Co. v. Natural Resources

Defense Council, Inc.,

462 U.S. 87 (1983) . . . . . . . . . . . . . . . 3, 12, 13, 22

Barnhart v. Walton,

535 U.S. 212 (2002) . . . . . . . . . . . . . . . . . . . . . . . 8

Bennett v. Spear,

520 U.S. 154 (1997) . . . . . . . . . . . . . . . . 16, 17, 19

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) . . . . . . . passim

City of Arlington v. FCC,

569 U.S. 290 (2013) . . . . . . . . . . . . . . . . . . . . . 6, 8

Clinton v. City of New York,

524 U.S. 417 (1998) . . . . . . . . . . . . . . . . . . . . . . . 5

Delta Smelt Consol. Cases v. Salazar,

760 F. Supp. 2d 855 (E.D. Cal. 2010) . . . . . . . . 20

Ethyl Corp. v. Envtl. Prot. Agency,

541 F.2d 1 (D.C. Cir. 1976), cert. denied

426 U.S. 941 (1976) . . . . . . . . . . . . . . . . . . . . . . 14

Global Tel*Link v. FCC,

866 F.3d 397 (D.C. Cir. 2017) . . . . . . . . . . . 11, 12

iii

Greater Boston Television Corp. v. FCC,

444 F.2d 841 (D.C. Cir. 1970), cert. denied

403 U.S. 923 (1971) . . . . . . . . . . . . . . . . . . . . . . 14

Gutierrez-Brizuela v. Lynch,

834 F.3d 1142 (10th Cir. 2016) . . . . . . . . . . . . . 11

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) . . . . . . . . . . . . . . . . . . . 15, 16

Marbury v. Madison,

5 U.S. 137 (1803) . . . . . . . . . . . . . . . . . . . . . . . 4, 5

Markle Interests, L.L.C. v. U.S. Fish &

Wildlife Serv., 827 F.3d 452 (5th Cir. 2016) . . . 12

Motor Vehicle Mfrs. Ass’n v. State Farm Mutual

Auto. Ins. Co., 463 U.S. 29 (1983) . . . . . . . . . . . 14

Nat’l Cable & Telecomms. Ass’n v. Brand X Internet

Servs., 545 U.S. 967 (2005) . . . . . . . . . . . . . . . . . 8

National Association of Home Builders v. Defenders

of Wildlife, 551 U.S. 644 (2007) . . . . . . . . . . . . . 17

Sackett v. Envtl. Prot. Agency,

566 U.S. 120 (2012) . . . . . . . . . . . . . . . . . . . . . . . 7

San Luis & Delta-Mendota Water Authority v.

Jewell, 747 F.3d 581 (9th Cir. 2014) . . . . . . 20, 21

Tennessee Valley Authority v. Hill,

437 U.S. 153 (1978) . . . . . . . . . . . . . . 3, 15, 17, 18

United States v. Mead Corp.,

533 U.S. 218 (2001) . . . . . . . . . . . . . . . . . . . . . . . 8

WAIT Radio v. FCC,

418 F.2d 1153 (D.C. Cir. 1969) . . . . . . . . . . . . . 14

iv

STATUTES

5 U.S.C. § 706(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

16 U.S.C. § 1531(6) . . . . . . . . . . . . . . . . . . . . . . . . . 19

16 U.S.C. § 1533(a)(1) . . . . . . . . . . . . . . . . . . . . . . . 19

16 U.S.C. § 1533(b) . . . . . . . . . . . . . . . . . . . . . . . . . 19

16 U.S.C. § 1536(a)(2) . . . . . . . . . . . . . . . . . . . . . . . 19

42 U.S.C. § 4321 et seq. . . . . . . . . . . . . . . . . . . . . . 12

OTHER AUTHORITIES

Kent Barnett & Christopher J. Walker, Chevron in

the Circuit Courts, 116 Mich. L. Rev. 1

(2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Travis O. Brandon, Fearful Asymmetry: How the

Absence of Public Participation in Section 7 of

the ESA Can Make the “Best Available Science”

Unavailable for Judicial Review, 39 Harv. Envtl.

L. Rev. 311 (2015) . . . . . . . . . . . . . . . . . . . . . . . 13

Br. of Amici Curiae Coalition, SLDMWA, and WGA

in Support of Pet’rs Writ of Cert. Ex. 1, Aug. 11,

2017 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Erwin Chemerinsky, Opinion, The Power of

Judicial Review: Erwin Chemerinsky, Los

Angeles Daily News (May 3, 2017, 1:02 PM),

https://www.dailynews.com/2017/05/03/thepower-of-judicial-review-erwin-chemerinsky/ . . 5

William B. DeOreo, California Single Family Water

Use Efficiency Study (2011) . . . . . . . . . . . . . . . . 21

The Federalist No. 47 (C. Rossiter ed. 1961) . . . . . . 5

v

FMWT Delta Smelt Annual Abundance Indices (all

ages), 1967-2017, Cal. Dep’t of Fish and Wildlife,

http://www.dfg.ca.gov/delta/data/fmwt/Indices/

sld002.asp . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22

Merrick Garland, Deregulation and Judicial

Review, 98 Harv. L. Rev. 505 (1985) . . . . . . . . . 14

GrandTab 2018.04.09: California Central Valley

Chinook Population Database Report, Cal. Dep’t

of Fish and Wildlife, https://nrm.dfg.ca.gov/FileHandler.

ashx?DocumentID=84381&inline . . . . . . . . . . . 22

Matthew Groban, Arizona Cattle Growers’

Association v. Salazar: Does the Endangered

Species Act Really Give a Hoot About the Public

Interest It “Claims” To Protect?, 22 Vill. Envtl.

L.J. 259 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Renée Johnson & Betsy A. Cody, California

Agricultural Production and Irrigated Water Use

(2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Orin S. Kerr, Shedding Light on Chevron: An

Empirical Study of the Chevron Doctrine in the

U.S. Courts of Appeals, 15 Yale J. on Reg. 1

(1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Hammond Meazell, Super Deference, the Science

Obsession, and Judicial Review as Translation

of Agency Science, 109 Mich. L. Rev. 733

(2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Thomas W. Merrill & Kristin E. Hickman,

Chevron’s Domain, 89 Geo. L.J. 833 (2001) . . . . 7

vi

U.S. Bureau of Reclamation, Coordinated LongTerm Operation of the Central Valley Project and

State Water Project Final Environmental Impact

Statement 5-100-05 (2015) . . . . . . . . . . . . . . . . . 21

1

INTEREST OF AMICI CURIAE1

The San Luis & Delta-Mendota Water Authority

(SLDMWA) consists of twenty-eight public water

agencies serving approximately 2.1 million acres within

the western San Joaquin Valley, San Benito, and Santa

Clara counties in California. SLDMWA operates and

maintains certain federal Central Valley Project

facilities, delivering up to 3 million acre feet of water

per year within SLDMWA’s member agencies’ service

areas, which include some of the most productive

farmland in the country, the Silicon Valley, and the

largest contiguous wildlife refuge west of the

Mississippi River.

Coalition for a Sustainable Delta (Coalition) is a

non-profit comprised of agricultural water users and

individuals in the San Joaquin Valley in California.

The Coalition and its members depend on reliable

water supplies from California’s Sacramento-San

Joaquin Delta for their livelihoods and economic wellbeing. The purpose of the Coalition is to (1) promote

the long-term, ecological health of the Sacramento-San

Joaquin Delta and its native species and (2) ensure a

sustainable, reliable water supply for persons and

entities engaged in agricultural pursuits in the San

Joaquin Valley.

1

Pursuant to Sup. Ct. R. 37.6, amici curiae and their counsel state

that none of the parties to this case nor their counsel authored this

brief in whole or in part, and that no person or entity made a

monetary contribution specifically for the preparation or

submission of this brief. Amici curiae file this brief with the

written consent of all parties, copies of which are on file in the

Clerk’s Office.

2

Western Growers Association (WGA) is a trade

association that represents local and regional family

farmers growing fresh produce in Arizona, California,

and Colorado. WGA members and their workers

provide over half the nation’s fresh fruits, vegetables,

and tree nuts, including nearly half of America’s fresh

organic produce.

WGA advocates in legislative,

regulatory, and judicial forums to ensure that

environmental policy is informed by sound science and

proven data.

Members of SLDMWA, the Coalition, and WGA

must operate within the limitations imposed by the

federal government under the Endangered Species Act

(ESA) and a myriad of other environmental statutes.

Increasingly, these statutes significantly influence how

and to what extent regulated entities, including

SLDMWA, the Coalition, and WGA, are able to access

vital natural resources such as water. SLDMWA, the

Coalition, and WGA have an interest in ensuring that

agency administration and application of these statutes

is subject to effective judicial review, consistent with

the separation of powers established by the

Constitution. This case highlights the importance of

that interest.

SUMMARY OF ARGUMENT

The growth of the Executive Branch within our

constitutional democracy is, to a degree, a predictable

byproduct of our increasingly complex society. It is also

a consequence of the increasing inability of the

Legislative Branch to reauthorize many of the statutes

initially enacted during the 1970s, including the ESA,

which now comprise the modern body of environmental

law. Even so, the exercise of power by the Executive

3

Branch remains subject to the strictures imposed by

the Constitution. The functions of Congress in

enacting the laws and the Judiciary in interpreting

them are well established. The functions of the

Judiciary, such as judicial review of agency decisions,

take on greater, rather than lesser, importance in the

context of the growth of the Executive Branch.

Unfortunately, judicial review of agency decisions has

been severely constrained by judicially-created

doctrines requiring deference to both agency legal and

technical determinations. These doctrines, which

generally trace back to Chevron U.S.A. Inc. v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984)

and Baltimore Gas & Electric Co. v. Natural Resources

Defense Council, Inc., 462 U.S. 87, 103 (1983) impact

the way in which courts review agency decisions and

ultimately whether there is room for the courts to

decide what the law is and correct agency errors. The

Judiciary’s constitutional role has been further

undermined in the context of the ESA by the notion

that the requirements imposed by the ESA trump those

imposed by other statutes and must be implemented

without regard to cost. The Court’s ESA jurisprudence

post Tennessee Valley Authority v. Hill, 437 U.S. 153

(1978), as well as amendments to the statute itself,

shows that this notion is misguided.

These transgressions are not academic. This case is

a prime example of how judicial review of agency

decision-making is essential to enforcing the

Constitution and laws and to promoting the separation

of powers. Congress adopted the ESA to serve an

important purpose, but implementation of the ESA

often comes with substantial societal costs. Blind

deference to agency legal determinations can lead to a

4

circumstance where (as here) agency authority is

unmoored from the language and intent of the ESA.

Similarly, blind deference to agency technical

determinations can lead to a circumstance where

(again, as here) courts rubber stamp agency

conclusions. In both of these circumstances, agency

action can impose significant costs on regulated

entities. It can also lead to a circumstance where listed

species are denied the degree of protection Congress

intended.

The Court should rule for Petitioner, and in doing so

emphasize the limits on Executive Branch authority to

interpret the law and restore the vitality of the hard

look doctrine as a yardstick for judicial review of agency

decisions under the ESA and other federal statutes.

ARGUMENT

I.

THE JUDICIARY HAS A CONSTITUTIONAL

DUTY TO INTERPRET THE LAW

A. JUDICIAL REVIEW OF AGENCY

DECISION-MAKING IS ESSENTIAL

As the Court examines the U.S. Fish and Wildlife

Service’s (Service) designation of private land that

cannot presently support the dusky gopher frog as

unoccupied critical habitat and the agency’s decision

not to exclude areas from a critical habitat designation

because of the economic impact of the designation, it

should be mindful of the purpose of judicial review.

First, judicial review of government action exists to

enforce the Constitution and laws. In Marbury v.

Madison, 5 U.S. 137 (1803), the Court ruled that

federal courts have the power to declare

5

unconstitutional acts by the Executive and the

Legislature. “[T]he particular phraseology of the

constitution of the United States confirms and

strengthens the principle, supposed to be essential to

all written constitutions, that a law repugnant to the

constitution is void; and that courts, as well as other

departments, are bound by that instrument.” Marbury,

5 U.S. at 180. In the more than 200 years since

Marbury, judicial review has been “essential to

enforcing the Constitution and to ensuring that no

person, not even the president, is above the law.”

Erwin Chemerinsky, Opinion, The Power of Judicial

Review: Erwin Chemerinsky, Los Angeles Daily News

(May 3, 2017, 1:02 PM), https://www.dailynews.com/20

17/05/03/the-power-of-judicial-review-erwin-chemerins

ky/. Without the power of judges to enforce the

Constitution, it “is no more than words on old

parchment that is kept under glass.” Id.

Second, judicial review serves as a necessary check

on the exercise of power by the Executive and

Legislative branches of government. “Separation of

powers was designed to implement a fundamental

insight: Concentration of power in the hands of a single

branch is a threat to liberty.” Clinton v. City of New

York, 524 U.S. 417, 450 (1998) (Kennedy, J.

concurring). Hence, James Madison observed “in these

explicit terms: ‘The accumulation of all powers,

legislative, executive, and judiciary, in the same

hands . . . may justly be pronounced the very definition

of tyranny.’” Id. (quoting The Federalist No. 47, p. 301

(C. Rossiter ed. 1961)). “Liberty is always at stake

when one or more of the branches seek to transgress

the separation of powers.” Clinton, 524 U.S. at 450

(Kennedy, J. concurring).

6

Relative to “the growing power of the administrative

state,” City of Arlington v. FCC, 569 U.S. 290, 315

(2013) (Roberts, C.J., joined by Kennedy, J. and Alito,

J., dissenting), the Judiciary’s duty to review agency

decision-making is therefore especially important.

Agency decision-making of the type involved in the

present case involves the exercise of legislative and

executive powers by a single body. See City of

Arlington, 569 U.S. at 1877-78. Mindful of liberty, this

Court in reviewing the Service’s decisions “should not

defer to [the Service] until the [C]ourt decides, on its

own, that the agency is entitled to deference.” Id. at

1877.

Courts have already determined that critical

habitat designations are subject to judicial review

under section 704 of the Administrative Procedure Act.

E.g., ALCOA v. Adm’r, Bonneville Power Admin., 175

F.3d 1156, 1160 (9th Cir. 1999) (“The [APA] governs

judicial review of administrative decisions involving

the [ESA].”). And wisely so. Without judicial review,

courts would be foreclosed from serving as a check on

potentially arbitrary or capricious conduct by federal

agencies.

Critical habitat designations have implications for

“hundreds of thousands of rural citizens.” Matthew

Groban, Arizona Cattle Growers’ Association v.

Salazar: Does the Endangered Species Act Really Give

a Hoot About the Public Interest It “Claims” To Protect?,

22 Vill. Envtl. L.J. 259, 279 (2011). In California alone,

the federal wildlife agencies have designated more than

20 million acres of land and waters as critical habitat.

Br. of Amici Curiae Coalition, SLDMWA, and WGA in

Support of Pet’rs Writ of Cert. Ex. 1, Aug. 11, 2017.

7

Judicial review provides an essential check on the

Service’s power and protects individual property rights

and liberties. See Sackett v. Envtl. Prot. Agency, 566

U.S. 120, 132 (2012) (Alito, J., concurring) (“The

position taken in this case by the Federal

Government—a position that the Court now squarely

rejects—would have put the property rights of ordinary

Americans entirely at the mercy of [agency]

employees.”). However, without effective judicial

review, separation of powers cannot operate as

intended under the Constitution, and persons impacted

by agencies’ interpretation and application of federal

statutes are denied the benefit of independent review.

B. THE EXPANSION OF THE CHEVRON

DOCTRINE UNDERMINES JUDICIAL

REVIEW OF AGENCY DECISIONMAKING

Since this Court’s issuance of Chevron U.S.A. Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837

(1984), “[b]y and large, the history of the Chevron

doctrine has been one of triumphal expansion.”

Thomas W. Merrill & Kristin E. Hickman, Chevron’s

Domain, 89 Geo. L.J. 833, 838 (2001). Chevron’s

journey from a case regarding an arcane air quality

rule to an eponymous doctrine ubiquitously applied as

a pillar of administrative law is remarkable. The

Chevron doctrine’s expansion has had a tangible impact

on the way in which courts review agency decisions.

Perhaps because Chevron was an environmental

case, it took hold within the environmental law context

first. Id. Through time the doctrine has “gradually

displaced formulations about deference developed in

other fields, including those with substantial bodies of

8

precedent that preexisted Chevron and deviated from

it in important respects, such as labor law and tax

law.” Id. at 838-39 (citations omitted).

While the doctrine’s history of application to

different types of legal issues and agency

interpretations (Chevron’s “domain”) has been uneven

and complicated, overall, it is marked by a pattern of

expansion. The Chevron doctrine is now, arguably,

applicable to some informal agency interpretations that

are not the product of a formal adjudication or noticeand-comment rulemaking, United States v. Mead Corp.,

533 U.S. 218, 230-31 (2001) (“[A]s significant as noticeand-comment is in pointing to Chevron authority, the

want of that procedure here does not decide the case,

for we have sometimes found reasons for Chevron

deference even when no such administrative formality

was required and none was afforded.”); Barnhart v.

Walton, 535 U.S. 212, 222 (2002) (noting that “the

presence or absence of notice-and-comment rulemaking

[was not] dispositive” in Mead Corp., 533 U.S. at 218);

to agencies’ interpretations of their own authority or

jurisdiction, City of Arlington v. FCC, 569 U.S. 290, 303

(2013) (“The U.S. Reports are shot through with

applications of Chevron to agencies’ constructions of

the scope of their own jurisdiction.”); and to agency

interpretations that conflict with published judicial

opinions, Nat’l Cable & Telecomms. Ass’n v. Brand X

Internet Servs., 545 U.S. 967, 980 (2005) (“If a statute

is ambiguous, and if the implementing agency’s

construction is reasonable, Chevron requires a federal

court to accept the agency’s construction of the statute,

even if the agency’s reading differs from what the court

believes is the best statutory interpretation.”).

9

Chevron’s incursion into a range of legal fields and

issues is important because the deferential regime that

courts employ in part determines whether and to what

extent courts will engage in independent interpretation

of the law. In 2017, Kent Barnett and Christopher J.

Walker published an article that presents the findings

of the largest empirical study of Chevron in the circuit

courts. Kent Barnett & Christopher J. Walker,

Chevron in the Circuit Courts, 116 Mich. L. Rev. 1

(2017). Barnett and Walker attempted to capture all

published decisions over an eleven-year period in which

the circuit courts referred to Chevron, and from that

pool of decisions, assembled a dataset of 1,327 decisions

in which the circuit courts reviewed agency

interpretation of statutes. Id. at 21-27. Barnett and

Walker found that:

the application of the Chevron framework seems

to make a meaningful difference as to whether

agencies prevail on the interpretive question.

Indeed, there was nearly a twenty-fourpercentage-point difference in win rates when

the circuit courts applied Chevron deference

(77.4%) than when they refused to apply it

(53.6%). The agency was twice as likely (77.4%

to 38.5%) to prevail if the court applied Chevron

deference as opposed to reviewing the

interpretation de novo and nearly three-fourths

more likely (77.4% to 56.0%) to prevail under

Chevron than Skidmore.

In other words,

agencies won more in the circuit courts when

Chevron deference applied, at least when the

court expressly considered whether to apply

Chevron deference.

10

Id. at 30-31; see also Orin S. Kerr, Shedding Light on

Chevron: An Empirical Study of the Chevron Doctrine

in the U.S. Courts of Appeals, 15 Yale J. on Reg. 1, 31

(1998) (presenting the results of an empirical study

finding that “courts resolving applications at [Chevron]

step one upheld the agency interpretations only 42% of

the time . . . and those resolving applications at step

two upheld the agency view in 89% of the

applications”).

Barnett and Walker modestly conclude, “In sum,

using agency-win rates as an admittedly less-thanperfect heuristic to assess the meaningfulness of

deference regimes, as others before us have done, we

see that deference regimes appear to matter.” Barnett

& Walker, supra, at 32 (emphasis added). However, as

any party that has repeatedly confronted Chevron

deference in attempts to obtain judicial relief knows,

deference regimes not only appear to matter, but most

certainly do matter. This case, Weyerhaeuser Co. v.

Fish and Wildlife Service, et al., is a prime example.

What if the Court were to pull in the reins on

Chevron and allow courts to reclaim their rightful

interpretive authority? Prior to joining the Court,

Justice Gorsuch addressed just such a question:

[W]hat would happen in a world without

Chevron?

If this goliath of modern

administrative law were to fall?

Surely

Congress could and would continue to pass

statutes for executive agencies to enforce. And

just as surely agencies could and would continue

to offer guidance on how they intend to enforce

those statutes. The only difference would be

that courts would then fulfill their duty to

11

exercise their independent judgment about what

the law is. Of course, courts could and would

consult agency views and apply the agency’s

interpretation when it accords with the best

reading of a statute. But de novo judicial review

of the law’s meaning would limit the ability of an

agency to alter and amend existing law. It

would avoid the due process and equal

protection problems of the kind documented in

our decisions.

It would promote reliance

interests by allowing citizens to organize their

affairs with some assurance that the rug will not

be pulled from under them tomorrow, the next

day, or after the next election. And an agency’s

recourse for a judicial declaration of the law’s

meaning that it dislikes would be precisely the

recourse the Constitution prescribes — an

appeal to higher judicial authority or a new law

enacted consistent with bicameralism and

presentment. We managed to live with the

administrative state before Chevron. We could

do it again. Put simply, it seems to me that in a

world without Chevron very little would change

— except perhaps the most important things.

Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1158 (10th

Cir. 2016) (Gorsuch, J., concurring). Chevron should be

set aside, or at minimum significantly modified. If the

Court retains some aspect of Chevron, it should affirm

Judge Silberman’s observation that “Chevron’s second

step can and should be a meaningful limitation on the

ability of administrative agencies to exploit statutory

ambiguities, assert farfetched interpretations, and

usurp undelegated policymaking discretion.” Global

12

Tel*Link v. FCC, 866 F.3d 397 (D.C. Cir. 2017)

(Silberman, J., concurring).

II.

THE REFUSAL OF THE JUDICIARY TO

REVIEW AGENCY TECHNICAL

DETERMINATIONS IS BASED ON AN

OVER-EXPANSIVE READING OF

BALTIMORE GAS & ELECTRIC AND IS

IMPROPER

In addition to invoking Chevron to justify its holding

that land that is not habitable by a species is “essential

for the conservation of the species,” the court of appeals

invokes Baltimore Gas & Electric Co. v. Natural

Resources Defense Council, Inc., 462 U.S. 87, 103 (1983)

for the proposition that when courts are reviewing

agency scientific determinations, they must be at their

most deferential. Markle Interests, L.L.C. v. U.S. Fish

& Wildlife Serv., 827 F.3d 452, 465 (5th Cir. 2016).

Like Chevron, Baltimore Gas & Electric was an

environmental case. It involved a challenge to a

decision of the Nuclear Regulatory Commission (NRC)

under the National Environmental Policy Act, 42

U.S.C. § 4321 et seq. In upholding the decision of the

NRC that permanent storage of certain nuclear wastes

would have no significant environmental impact, the

Court expressly affirmed the NRC’s assumption that

there was zero chance that the nuclear waste would be

released into the environment.

The Court explained:

A reviewing court must remember that the

Commission is making predictions, within its

area of special expertise, at the frontiers of

science. When examining this kind of scientific

13

determination, as opposed to simple findings of

fact, a reviewing court must generally be at its

most deferential.

462 U.S. at 103.

While this Court has neither revisited nor even

cited Baltimore Gas & Electric in the past quarter

century, the case has greatly influenced lower courts.

Travis O. Brandon, Fearful Asymmetry: How the

Absence of Public Participation in Section 7 of the ESA

Can Make the “Best Available Science” Unavailable for

Judicial Review, 39 Harv. Envtl. L. Rev. 311, 343

(2015). The deference accorded to agency scientific

determinations under Baltimore Gas & Electric has

come to be known as super deference.

Emily

Hammond Meazell, Super Deference, the Science

Obsession, and Judicial Review as Translation of

Agency Science, 109 Mich. L. Rev. 733 (2011).

Meazell offered a scathing critique of the doctrine of

super deference built on Baltimore Gas & Electric.

Super deference is not grounded in realistic

notions of agency science; it may contribute to

ossification and the science charade; and it

appears to have a disparate impact on

environmental law. Measured against broader

administrative-law values, super deference also

inhibits transparency; undermines deliberation;

fails to accord with political accountability; and

generally abdicates the courts’ role in the

constitutional scheme by encouraging outcomeoriented review.

Id. at 737-38 (footnotes omitted).

14

Traditional deference under the Administrative

Procedure Act, 5 U.S.C. § 706(2), and the record review

doctrine, which reserves to federal agencies the ability

to determine the scope of the record on review, already

stack the odds in favor of the federal government. In

this context, as Meazell points out, the time-tested

hard look doctrine2 applied by the courts strikes a

reasonable balance by promoting transparency,

deliberation, and accountability, and situating the

courts in their proper position as judicial watchdogs.

Meazell, supra, at 737-38, 784. The alternative—

application of super deference to agency scientific and

technical determinations—is akin to “a charade that

gives the imprimatur without the substance of judicial

confirmation that the agency is not acting

unreasonably.” Ethyl Corp. v. Envtl. Prot. Agency, 541

F.2d 1, 69 (D.C. Cir. 1976), cert. denied 426 U.S. 941

(1976) (Leventhal, J., dissenting).

2

The doctrine was first applied in WAIT Radio v. FCC, 418 F.2d

1153 (D.C. Cir. 1969) and Greater Boston Television Corp. v. FCC,

444 F.2d 841 (D.C. Cir. 1970), cert. denied 403 U.S. 923 (1971).

This Court implicitly endorsed the hard look doctrine in Motor

Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S.

29, 41-44 (1983). See Merrick Garland, Deregulation and Judicial

Review, 98 Harv. L. Rev. 505, 543-549 (1985) (providing a thorough

discussion of the State Farm decision as an endorsement of the

hard look doctrine).

15

III.

TVA V. HILL DOES NOT JUSTIFY READING

THE ESA AS SUPPORTING WHATEVER

INTERPRETATION MAXIMIZES SPECIES

PROTECTION

The Court’s first and probably most widely-known

decision involving the ESA is Tennessee Valley

Authority v. Hill, 437 U.S. 153 (1978) (TVA v. Hill). In

that case the Court held that ESA section 7 barred

completion of the Tellico Dam, because the completed

dam would likely cause the extinction of the snail

darter fish. The Court found that the ESA was “the

most comprehensive legislation for the preservation of

endangered species ever enacted by any nation,” that

“the plain intent of Congress in enacting this statute

was to halt and reverse the trend toward species

extinction, whatever the cost,” and that section 7

“reveals a conscious decision by Congress to give

endangered species priority over the ‘primary missions’

of federal agencies.” TVA v. Hill, 437 U.S. at 180, 184,

185. ESA section 7, the Court found, “admits of no

exception,” and hence completion of the dam was

precluded, despite the millions of dollars already

invested. Id. at 173.

This sweeping language in TVA v. Hill has led

litigants, and sometimes courts, to call for the ESA’s

terms to mean whatever offers the greatest protection

for listed species. That call will likely be repeated in

this case. The Court’s ESA jurisprudence since TVA v.

Hill makes clear, however, that the ESA should not be

read to override all other interests in the name of

maximum species protection.

The Court has addressed the ESA in four cases

since TVA v. Hill. The first, Lujan v. Defenders of

16

Wildlife, 504 U.S. 555 (1992), was decided on grounds

of Article III standing, and hence did not delve into the

ESA’s substantive provisions. The second was Babbitt

v. Sweet Home Chapter of Communities for a Great

Oregon, 515 U.S. 687 (1995). Sweet Home involved a

regulation defining the term “take,” and presented the

issue whether take could include habitat modification

that only indirectly injures a listed species. The Court

held it may, and that a regulation so providing was

permissible under the ESA. Sweet Home, 515 U.S. at

698. But in doing so the Court carefully defined limits

on the reach of potential liability for take, explaining

that to establish liability for illegal take requires

meeting “ordinary requirements of proximate causation

and foreseeability” and that the act involved must

“actually kill[] or injure[]” particular members of the

listed species. Id. at 700 n.13. The proof requirements

set out in Sweet Home thus narrowed the potential for

enforcement based on modification of habitat, granting

some protection for landowners facing uncertainty over

permissible uses of their property.

The third case was Bennett v. Spear, 520 U.S. 154

(1997). In Bennett a unanimous Court held that the

citizen suit provision of the ESA, 16 U.S.C. section

1540(g), allows any person to sue for violations of the

ESA, including persons whose commercial,

agricultural, recreational or other economic interests

may be impaired by application of the ESA. Bennett,

520 U.S. at 176-77. That is, the Court declined to limit

citizen suits to those persons seeking greater protection

of listed species. For ESA-related claims brought

under the Administrative Procedure Act, the Court

found that economic interests are within the zone of

interests protected by the ESA. For example, the

17

requirement that the agencies use the best scientific

data available is intended “to ensure that the ESA not

be implemented haphazardly, on the basis of

speculation” and “to avoid needless economic

dislocation produced by agency officials zealously but

unintelligently pursuing their environmental

objectives.” Id. at 176-77. Thus, Bennett makes clear

that the ESA should be read and applied according to

all its terms, including terms that temper or limit

regulation intended to benefit listed species.

Finally, the Court addressed the ESA in National

Association of Home Builders v. Defenders of Wildlife,

551 U.S. 644 (2007). In Home Builders the Court held

that a regulation adopted by the Services properly

limited section 7 consultation to discretionary agency

actions. That is, federal agencies are not required to

consult on actions that are mandated, that they lack

discretion to avoid taking. Home Builders, 551 U.S. at

664-69. The Court held the Environmental Protection

Agency therefore had no obligation to consult regarding

its delegation of permitting authority under the Clean

Water Act to the State of Arizona, where the provision

of the Clean Water Act governing delegation did not

allow for additional potential criteria arising from ESA

consultation. Id. at 661-73. Home Builders teaches

that while section 7 may bar federal agencies from

carrying out discretionary actions, such as the action at

issue in TVA v. Hill, section 7 does not apply to and

hence does not bar agencies from fulfilling

nondiscretionary duties.

Once again, the Court

recognized that the ESA applies within a framework of

multiple objectives and interests, and that pursuit of

protection of listed species does not always override

other interests.

18

In sum, it is often argued that the sweeping

language of TVA v. Hill justifies reading the ESA’s

provisions regarding designation of critical habitat

broadly, so at to maximize protection for listed species.

But this Court’s ESA jurisprudence demonstrates that

is not the correct approach. The ESA, like other

statutes serving important purposes, must be

reasonably construed in accordance with its terms.

Like other statutes, it has limits, and requirements

that are intended to balance achievement of its

purposes with avoiding unnecessary or undesirable

impacts to other interests. The present case offers the

Court another opportunity to make that clear.

IV.

AGENCY APPLICATION OF THE ESA

WITHOUT THE BENEFIT OF EFFECTIVE

JUDICIAL REVIEW CAN HAVE

SIGNIFICANT CONSEQUENCES ON THE

USE OF LAND AND WATER RESOURCES

Three aspects of the ESA make an expansive

application of its provisions particularly problematic

for private landowners and water users. First, a few

may be asked to bear the cost of preserving species for

the benefit of many. For example, the last landowner

with habitat suitable for a listed species who seeks to

develop her property may be constrained from doing so,

because others have developed their properties sooner,

and she owns what has become the last remaining

habitat. Or, the water user whose diversion is subject

to consultation under ESA section 7 may be required to

leave water in the river to compensate for the effects of

many other diversions that are not subject to such

consultation. Second, the ESA is a federal law that

directly regulates use of private land and water

19

resources. It thus can become a tool under federal law

for requiring changes to or limits on use that the

traditional regulators of land use and water rights,

state and local governments, have decided not to

impose. Third, for the most part the ESA lacks costbenefit and cost-effectiveness standards that might

otherwise shape regulatory implementation. The

designation of critical habitat is one of the few areas

where economic impacts come into play, but as the

facts in this case illustrate, that consideration can be

very limited in practice. These aspects of the ESA call

for a careful review of its application. It is one thing

for such burdens to be imposed by Congress; it is

something else for such burdens to be imposed by

agencies through an overly-expansive interpretation of

the ESA’s terms, or zealous, but unintelligent

application of the act. See Bennett, 520 U.S. at 176-77.

Another feature of the ESA requiring careful

judicial scrutiny arises from the mixed scientific and

legal judgments it requires. To make a listing decision

under section 4 of the ESA, for example, the Secretary

of the Interior is required to identify any species “in

danger of extinction throughout all or a significant

portion of its range” based on threats such as loss of

habitat, disease or predation, or overutilization for

commercial purposes. 16 U.S.C. §§ 1531(6), 1533(a)(1).

The Secretary must make this decision “solely on the

basis of the best scientific and commercial data

available.” 16 U.S.C. § 1533(b). As another example,

under section 7 of the ESA, each federal agency must

insure that its actions will not jeopardize the continued

existence of a listed species, again using the best

scientific data available. 16 U.S.C. § 1536(a)(2). Such

determinations require a mix of scientific and legal,

20

and perhaps policy, judgments. There can be a

temptation on the part of the agencies and also the

courts to characterize these determinations as scientific

or technical in nature, to invoke super deference

(discussed above) and insulate them from meaningful

judicial review.

An example of judicial deference to an agency’s

application of the ESA, one that involved these amici,

is found in San Luis & Delta-Mendota Water Authority

v. Jewell, 747 F.3d 581 (9th Cir. 2014). The case

involved a challenge to a biological opinion (BiOp)

issued under ESA section 7 regarding the effects of

federal Central Valley Project and California State

Water Project operations on a listed fish, the delta

smelt. While there are many causes for the delta

smelt’s decline, under ESA section 7, the focus of the

BiOp is on the action involved. The Service found that

proposed operations of the Central Valley Project and

the State Water Project would jeopardize the fish, and

specified a reasonable and prudent alternative to avoid

jeopardy that resulted in substantial loss of water

supply. The district court found that the BiOp included

serious errors, and remanded it. Delta Smelt Consol.

Cases v. Salazar, 760 F. Supp. 2d 855 (E.D. Cal. 2010).

On appeal, the Ninth Circuit agreed the BiOp had

significant flaws, explaining:

the BiOp is a bit of a mess. And not just a little

bit of a mess, but, at more than 400 pages, a big

bit of a mess. And the FWS knew it. . . . The

BiOp is a jumble of disjointed facts and

analyses. . . . It is a ponderous, chaotic

document, overwhelming in size, and without

the kinds of signposts and roadmaps that even

21

trained, intelligent readers need in order to

follow the agency’s reasoning.

San Luis & Delta-Mendota Water Authority, 747 F.3d

at 604-06. But, applying the doctrine of super

deference, the court found the BiOp was good enough

to withstand judicial review, and reversed the district

court. Id. at 606-27.

Under that deferential standard, a poorly explained

and poorly supported agency action has been allowed to

continue to diminish precious water supplies for much

of California.

The United States Bureau of

Reclamation has estimated that on a long-term annual

average, the BiOp, paired with a related salmonid

biological opinion issued in 2009, will reduce Central

Valley Project water deliveries by 335,000 acre-feet

annually, and reduce State Water Project deliveries by

773,000 acre-feet annually.

U.S. Bureau of

Reclamation, Coordinated Long-Term Operation of the

Central Valley Project and State Water Project Final

Environmental Impact Statement 5-100-05 (2015). One

million acre-feet of water is enough to supply

approximately 2,500,000 of California’s households for

a year, or to irrigate approximately 325,000 acres of

California’s farmland for a year. William B. DeOreo,

California Single Family Water Use Efficiency Study 26

(2011); Renée Johnson & Betsy A. Cody, California

Agricultural Production and Irrigated Water Use 15

(2015). The BiOp’s requirements intended to protect

delta smelt have been in effect since 2008. Yet, since

2008, the delta smelt and salmonid species’ relative

abundance has reached new lows, calling into question

the premises of the BiOp and the efficacy of its

measures directed at water project operations. FMWT

22

Delta Smelt Annual Abundance Indices (all ages),

1967-2017, Cal. Dep’t of Fish and Wildlife,

http://www.dfg.ca.gov/delta/data/fmwt/Indices/sld002.

asp; GrandTab 2018.04.09: California Central Valley

Chinook Population Database Report, Cal. Dep’t of

Fish and Wildlife, https://nrm.dfg.ca.gov/FileHandler.

ashx?DocumentID=84381&inline.

CONCLUSION

How did we get to a place where federal agencies

are allowed to designate land uninhabitable by a

protected species as critical habitat for that species?

The answer is, in part, that the court of appeals

combined different conceptions of deference to agency

conduct in implementing the ESA in a manner that

made judicial review a charade. Meaningful judicial

review of agency decisions is essential as a

counterbalance to the Executive Branch.

The

expansion of the Chevron and Baltimore Gas & Electric

doctrines and the misguided notion that the ESA is a

statute subject to a different standard have left

organizations and individuals across the country

without the opportunity for effective judicial review of

highly consequential agency decisions. We urge you to

rule for Petitioner and in so doing adhere to

Constitutional strictures by reinvigorating meaningful

judicial review.

23

Respectfully submitted,

PAUL S. WEILAND

ROBERT D. THORNTON

NOSSAMAN LLP

18101 Von Karman Avenue

Suite 1800

Irvine, CA 92612

(949) 833-7800

pweiland@nossaman.com

rthornton@nossaman.com

DANIEL J. O’HANLON

Counsel of Record

KRONICK, MOSKOVITZ,

TIEDEMANN & GIRARD

400 Capitol Mall, 27th Fl.

Sacramento, CA 95814

(916) 321-4500

dohanlon@kmtg.com

JON D. RUBIN

Counsel for Amici Curiae REBECCA R. AKROYD

Coalition for a Sustainable SAN LUIS & DELTA-MENDOTA

Delta and Western Growers WATER AUTHORITY

Association

400 Capitol Mall, 28th Fl.

Sacramento, CA 95814

(916) 321-4519

jon.rubin@sldmwa.org

rebecca.akroyd@sldmwa.org

Counsel for Amicus Curiae San

Luis & Delta-Mendota Water

Authority