Amicus Curiae Brief — Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 45 (2018) (No. 17-71)

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AND No. 17-71

E—————

IN THE

Supreme Court of the Anited States

WEYERHAEUSER COMPANY,

Petitioner,

Vv.

UNITED STATES FISH AND WILDLIFE SERVICE, ET AL.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF AMICUS CURIAE

ENERGY AND WILDLIFE ACTION COALITION

IN SUPPORT OF PETITIONER

STEVEN P. QUARLES SVEND A. BRANDT-ERICHSEN

NOSSAMAN LLP Counsel of Record

1666 K Street, NW NOSSAMAN LLP

Suite 500 801 Second Avenue

Washington, D.C. 20006 Suite 800

(202) 887-1400 Seattle, Washington 98104

(206) 489-5634

BROOKE M. WAHLBERG

sbrandterichsen@nossaman.com

NOSSAMAN LLP

816 Congress Avenue

Suite 970

Austin, Texas 78701

(512) 651-0660

Counsel for Amicus Curiae Energy and

Wildlife Action Coalition

August 14, 2017

WiLSON-EPES PRINTING CO..INC. — (202) 789-0096 -— WASHINGTON,.D C 20002

Library of Comguems

Law Livery

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...............00...0..8.

INTEREST OF AMICUS CURIAE.....................

SUMMARY OF ARGUMENT .............0....... eeaeee

REASONS FOR GRANTING PETITION ..........

Designating Areas That Are Not Habita-

ble By A Listed Species As “Critical

Habitat” Harms The Development And

Operation Of Energy Infrastructure........

Contrary To The Fifth Circuit’s Ruling,

The ESA Dictates That “Critical Habitat”

le ee SD ciiccesccinnnsunsievewsesipvovecsenns

IL.

The Fifth Circuit failed to consider

the operative provisions of the ESA,

which plainly state that critical

habitat must be habitable...................

. The Fifth Circuit wrongly gave

Chevron deference to a_ Service

interpretation of unoccupied critical

habitat that conflicts with the plain

language of the ESA............................

. The Fifth Circuit wrongly gave

Chevron deference to a Service inter-

pretation that goes beyond reason......

Ill. The Fifth Circuit’s Ruling Conflicts With

Decisions Of The Ninth Circuit................

IT oc cieneendchsoranpieniiantachnnsienteisestuinelindsaiivnncs i

(1)

TABLE OF AUTHORITIES

CASES Page(s)

Ariz. Cattle Growers’ Ass’n v. Salazar,

606 F.3d 1160 (9th Cir. 2010)............... 4, 19, 20

Bennett v. Spear,

5BO UB. 164 (1007) .......0..0.0000...00000.-2000 2008s

Chevron, U.S.A., Inc. v.

Nat. Res. Def. Council, Inc.,

467 U.S. GBT (IGG) ...2220000000000.0000-20ccceenees passim

City of Arlington, Tex. v.

Fed. Commce’ns Comm'n,

569 U.S. 290, 133 S.Ct. 1863 (2013).........

Food and Drug Admin. v. Brown

& Williamson Tobacco Corp.,

is Re) |, eeereenrreroe

Home Builders Ass’n of N. Cal. v.

U.S. Fish and Wildlife Serv.,

616 F.3d 983 (9th Cir. 2010)................. 4, 20, 21

Markle Interests, LLC v. U.S.

Fish & Wildlife Serv.,

827 F.3d 452 (5th Cir. 2016), No. 17-74....

Mich. v. Envtl. Prot. Agency,

576 U.S. _, 135 S.Ct. 2699 (2015)...........

Nat'l Ass’n of Home Builders v.

Defenders of Wilclife,

551 U.S. 644 (2007)................cceceeeeeeees 12, 13, 16

Robinson v. Shell Oil Co..,

NT in. ivesenvecnccosesevedaued

iii

TABLE OF AUTHORITIES—Continued

Page(s)

United Sav. Assn. of Tex. v. Timbers

of Inwood Forest Assocs., Ltd.,

GS FF Fe, Be Cases ccssccsccccssovccscecesees 17

Util. Air Regulatory Grp. v. Envtl. Prot.

Agency, 573 U.S. __, 184 8.Ct. 2427

I iciinctadiiabing sdcgaadinietibienianmepideannetn 12, 14, 17, 18

STATUTES AND REGULATIONS

16 U.S.C. § 1532(5 AMA) «2... eee 11,13

16 U.S.C. § 1532(5 KANGA) ........0... enone passim

BG UEC. 9 TR) oes c0-cccescccsoserscenccoees 4

16 U.S.C. § 1533(aX3 AMD .............. 12, 14, 16, 17

es Ue IE scceccncnecancosonscccessosepenes passim

I A i cncecencchwsscenensstbeanedvonss 6

ee te Oe UID dcr cecccecensessocececcrensssssnsoness 7,8

a ee OF TE veo cvsccssssecessressorcnenaneees 7

Pe ae ns OF hc ccescescccsececesccsensecsvocessens 9

OTHER AUTHORITIES

Issuance and Reissuance of Nationwide

Permits, 82 Fed. Reg. 1860, 1985 (Jan. 6,

INTEREST OF THE AMICUS CURIAE'

The Energy and Wildlife Action Coalition (“EWAC”)

respectfully submits this brief as amicus curiae in

support of the petitioner Weyerhaeuser Company.’

EWAC is an unincorporated association headquar-

tered in Washington, D.C. comprised of electric utili-

ties, electric transmission and distribution providers,

renewable energy companies, and related trade asso-

ciations. EWAC members operate throughout the

United States.

EWAC’s fundamental goal is to evaluate, develop,

and promote reasonable environmental policies for

federally protected wildlife and closely related natural

resources while ensuring the continued generation

and transmission of reliable and affordable electricity.

EWAC supports public policies, based on sound science,

that protect wildlife and natural resources in a rea-

sonable, consistent, and cost-effective manner.

The Fifth Circuit’s ruling will have a significant

impact on EWAC members. EWAC’s members develop,

construct, maintain, own, and operate electric genera-

tion, transmission, and distribution facilities that are

' Pursuant to Sup. Ct. R. 37.6, amicus curiae states that no

counsel for a party has written this brief in whole or in part, and

that no person or entity, other than amicus curiae, its members,

or its counsel, has made a monetary contribution to the prepara-

tion or submission of this brief. Pursuant to Sup. Ct. R. 37.3(a),

written consent to the filing of this brief has been obtained from

counsel for Petitioner and Respondents. Petitioner’s consent

is on file, as is consent of Respondent Markle Interests LLC,

et al. Document confirming consent of Respondents U.S. Fish

and Wildlife Service, et al. and Center for Biological Diversity,

et al., have been submitted to the Clerk’s office.

* EWAC also supports the arguments advanced by the compan-

ion petition filed by Markle Interests, LLC, and others, No. 17-74.

located or proposed to be built on private and public

lands that are not habitable by threatened or endan-

gered species (“listed species”), and yet these areas

could be designated as critical habitat for such species

under the criteria upheld by the divided panel of the

Fifth Circuit.

Endangered Species Act (“ESA”) consultation require-

ments may be triggered under ESA section 7(a)(2) if a

proposed facility is located on or crosses federal lands

or if it requires a federal permit or approval. See 16

U.S.C. § 1536(a\2). Many EWAC members have exist-

ing facilities on federal lands and will continue to con-

struct across federal lands to meet the electricity

needs of their customers. Further, many EWAC mem-

bers’ facilities on public or private lands require fed-

eral approvals such as Clean Water Act (“CWA”) sec-

tion 404 permits and Federal Energy Regulatory Com-

mission (“FERC”) licenses and some receive federally

backed financing. If critical habitat is present in any

of these scenarios, ESA section 7(a)(2) triggers addi-

tional review. This additional review can result in sig-

nificant increases in the time and cost for the affected

project, which ultimately results in increased costs to

electricity consumers. Other EWAC members obtain

private financing to construct their facilities. The

existence of critical habitat or the threat of a potential

critical habitat designation within a facility’s footprint

also adversely impacts private financing, as lenders

and investors react to the increased costs and risks

posed by critical habitat.

SUMMARY OF ARGUMENT

The Fifth Circuit has blessed a standard for desig-

nating land as “critical habitat” that is currently unin-

habitable by a listed species and has no prospect of

ever becoming habitable by that species, thereby

imposing an unworkable and unreasonable regulatory

burden on the development and continuing operation

of electrical infrastructure throughout the country.

The Fifth Circuit wrongly deferred to the U.S. Fish

and Wildlife Service’s (“Service”) designation of an area

as “critical habitat” for the endangered dusky gopher

frog (Rana sevosa) even though that area cannot sus-

tain that species, now or in the foreseeable future, and

has no connection to any area that is actually habit-

able by that species.

There are real consequences for the nation’s electric-

ity generation, transmission, and distribution infra-

structure from designating areas that cannot be

inhabited by a listed species as “critical habitat” and

from extending the protections — and regulatory

requirements — of the ESA to those areas. Through

this amicus brief, EWAC offers the Court a window

into how the Fifth Circuit’s decision could disrupt the

development and ongoing operation of its members’

facilities.

EWAC also expands upon the Petition’s discussion

of some of the legal errors made by the Fifth Circuit

majority in its opinion. The Fifth Circuit incorrectly

limited its analysis to the ESA’s definition of “critical

habitat” and failed to consider how the term is used in

the statute's operative provisions or in the additional

criteria for critical habitat provided by the ESA provi-

sion that authorizes the designation of “critical habitat”

by regulation.

The concept that “critical habitat” is, first and fore-

most, habitat for a listed species is embedded in the

ESA. When the Service lists a species under the ESA

the statute directs the Service, “to the maximum extent

prudent and determinable,” to designate by regulation

“any habitat of such species which is then considered

to be critical habitat.” 16 U.S.C. § 1533(aX3)A) (empha-

sis added). The ESA also requires federal agencies to

consult with the Service before undertaking or author-

izing an action that is likely to destroy or adversely

modify “habitat . . . which is determined .. . to be

critical.” 16 U.S.C. § 1536(a)(2).

The Fifth Circuit’s erroneous approach to interpret-

ing the ESA resulted in it giving improper deference

to a Service interpretation that conflicts with the plain

language of the statute’s operative provisions. It also

brought the Fifth Circuit into conflict with prior deci-

sions of the Ninth Circuit, which recognized that the

criteria for designating unoccupied critical habitat are

more stringent, not less stringent, than those applic-

able to occupied critical habitat. Ariz. Cattle Growers’

Ass’n v. Salazar, 606 F.3d 1160, 1163 (9th Cir. 2010);

Home Builders Ass’n of N. Cal. v. U.S. Fish and

Wildlife Serv., 616 F.3d 983, 990 (9th Cir. 2010).

REASONS FOR GRANTING PETITION

I. Designating Areas That Are Not Habitable

By A Listed Species As “Critical Habitat”

Harms The Development And Operation

Of Energy Infrastructure.

Constructing electricicity generation, transmission

and distribution facilities requires thousands of acres

of land and years of planning and development. Once

this electrical infrastructure is constructed, ongoing

operations include maintenance, emergency repairs,

and improvements. The designation of critical habitat

in areas uninhabitable by listed species could have

severe economic consequences for EWAC members’

existing and future energy infrastructure. Ultimately,

this cost is borne by the consumers and taxpayers.

EWAC members can and often do design and plan

facilities to avoid or minimize impacts to areas known

to support listed species. For example, a transmission

line or wind or solar energy facility may be sited, when

feasible, to avoid wooded areas that are suitable for

listed bat species or riparian habitat that supports

listed salamanders. The Fifth Circuit’s decision allows

the Service to designate as critical habitat former

woodlands that were logged long ago and converted to

other uses on the premise that the land could one day

revert back to forest and grow into suitable bat habi-

tat. The Service also could designate as critical habi-

tat land near streams that has been converted from

native vegetation to agriculture but could, in theory,

one day be restored to support listed salamanders.

Electrical infrastructure that crosses these sites and

that had been sited with the specific objective of avoid-

ing sensitive habitat suddenly and unexpectedly over-

laps critical habitat. In both cases and other similar

ones that could arise, it would be impossible for EWAC

members to factor such possibilities into their siting

and routingdecisions and extremely difficult to budget

for these uncertainties.

The energy projects undertaken by EWAC’s mem-

bers take years to design and construct. Electricity

generation locations and transmission routes are

carefully investigated, weighing a host of factors that

routinely include avoiding and minimizing impacts to

sensitive habitats and other natural resources. Once

decisions are made about routes and facility locations,

it normally takes several years to acquire or access

property, obtain permits, and construct the facilities.

As development proceeds, it becomes increasingly

expensive and challenging to change the design,

reroute a segment, or relocate facilities.

But all of the care an entity takes to avoid sensitive

habitats would be for naught if the Service can

interject, at any point in the development timeline or

the operating life of a project, a determination that

lands that do not contain the physical or biological

features necessary to sustain an ESA-listed species

nevertheless are “unoccupied critical habitat” and

subject to the full protections afforded by the ESA.

A project developer or facility operator simply cannot

anticipate or develop contingencies for this entirely

unpredictable risk that land which is not habitat can

be declared by the Service to be “critical habitat,” with

attendant regulatory consequences.

Oftentimes, even when private entities are con-

structing electrical infrastructure on private land,

construction requires some level of federal permitting

and may involve federal financial support. If a federal

permit is required or federal funding is provided, the

federal agency is obligated by ESA section 7(a)(2) to

consider whether the activity it is authorizing will

destroy or adversely modify critical habitat. 16 U.S.C.

§ 1536(a)(2). One of the most common federal author-

izations that EWAC members must secure is author-

ization under CWA section 404 for placing fill in waters

ot the United States. 33 U.S.C. § 1344. In many parts

of the country, it is virtually impossible to site electri-

cal infrastructure of any significant length and avoid

impacting wetlands. Thus, many projects require sec-

tion 404 permits for wetlands impacts at multiple sites

along their routes. The U.S. Army Corps of Engineers’

(the “Corps”) issuance of a section 404 permit is sub-

ject to the ESA’s consultation requirement, including

consideration of potential impacts on critical habitat.

See 16 U.S.C. § 1536(a)\(2).

The Corps has adopted a streamlined Nationwide

Permit (“NWP”) program under CWA section 404 that

is “designed to regulate with little, if any, delay or

paperwork certain activities having minimal impacts.”

33 C.F.R. § 330.1(b). EWAC members regularly rely

on the NWP program for expedited authorization to

construct, operate, and maintain their facilities. For

example, NWP 12 authorizes utility line work with

limited impacts on wetlands and waterbodies:

Activities required for the construction,

maintenance, repair, and removal of utility

lines and associated facilities in waters of the

United States, provided the activity does not

result in the loss of greater than 1/2-acre of

waters of the United States for each single

and complete project.

Issuance and Reissuance of Nationwide Permits, 82

Fed. Reg. 1860, 1985 (Jan. 6, 2017).

For an activity to be authorized under the NWP, the

activity must adhere to a set of general conditions.

General Condition 18 requires that non-federal per-

mittees (such as EWAC members) notify the Corps

if any designated “critical habitat might be affected

or is in the vicinity of the activity, or if the activity

is located in designated critical habitat,” and the

activity cannot proceed until the Corps has completed

its obligations under ESA section 7(a)(2). 33 C.F.R.

§ 330.4(f(2). If critical habitat might be affected or is

within the vicinity of its NWP activity, a project propo-

nent is thrown into a delayed permitting pathway,

requiring pre-construction notification and potential

consultation between the Corps and the Service. Id.

The Fifth Cireuit’s decision would create significant

uncertainty in this process. If a designation occurred

during project development, despite a project propo-

nent’s best efforts to avoid sensitive habitats and

thereby reduce potential wildlife impacts and permit-

ting burden, it would impose these additional costs

and delays even though the “critical habitat” is not

only unoccupied, but uninhabitable by the species.

If the Service requires formal consultation, the Ser-

vice’s Biological Opinion likely will require the imple-

mentation of measures that add further costs and

delays, defeating the NWP objective of regulating

“with little, if any, delay or paperwork.” 33 C.F.R.

§ 330.1(b). Perversely, the fact that the land currently

is uninhabitable is likely to result in even greater costs

for the proponent, particularly if the Service seeks to

condition what should otherwise be a simple permit on

some effort to convert the land to a condition that is

useable by the species. This outcome is unreasonable,

will increase costs and cause delay, and could prevent

projects from being built or existing infrastructure

from receiving necessary improvements, disrupting

access to reliable and affordable electric power, all

while providing little or no benefit for listed species.

The time, complexity, and cost of federal permitting

increase where critical habitat is present. For example,

one EWAC member was required to obtain a CWA

permit for construction activities, which in turn trig-

gered ESA consultation as the project occurred within

areas designated as Canada lynx critical habitat. The

Service could not definitively identify any effect the

project would have on the critical habitat, and yet the

company was required to conduct pre-construction,

construction, and post-construction monitoring of lynx

in the area. Not only did the existence of critical

habitat add significant length to the permitting pro-

cess, but the potential effects to the critical habitat

also triggered additional costs even where the Service

could not definitively identify effects to the species.

This scenario would be even more complicated if

the “critical habitat” in question were uninhabitable

by the listed species. If the potential effect of a project

on useable Canada lynx habitat is unclear, it would

be that much more difficult to respond to Service

concerns about potential effects to habitat that is not

habitable.

EWAC members have thousands of miles of existing

electric transmission and distribution facilities that

occur on federal lands, and they will continue to develop

and improve these facilities in the future in order to

ensure delivery of safe and reliable electric power to

America. The siting and construction of new infra-

structure, as well as the operation and maintenance of

existing infrastructure, on federal lands are subject to

rights-of-way (“ROW”) obtained from the relevant fed-

eral agencies (Bureau of Land Management, U.S. Forest

Service, etc.). Grants of ROW accesses are discretion-

ary federal actions, and therefore trigger the action

agency's obligation to consult with the Service under

the ESA. 16 U.S.C. § 1536(a)(2). The action agency

must then evaluate the effects of granting the ROW

on listed species and critical habitat. 50 C.F.R.

§ 402.02(c).

If the ROW has the potential to affect listed species

or critical habitat, the approval of the ROW is typically

conditioned on a suite of measures, to be undertaken

by the entities, that are designed to avoid, minimize,

and mitigate for these effects. EWAC members that

have an existing or future ROW within federal lands

where unoccupied, uninhabitable areas are designated

as critical habitat may be obligated to provide conser-

vation measures as a condition of the ROW approval.

These conservation measures may impose restrictions

that prevent timely access to electrical infrastructure,

which is especially problematic when emergency repairs

are needed.

Moreover, because electric transmission and distri-

bution systems extend over great distances, during

project design and ESA consultation the effects to

critical habitat often are coarsely estimated based on

critical habitat maps. In those instances, and where

critical habitat is designated over uninhabitable areas,

the magnitude of the effects to habitat that actually

could be utilized by a species (and of the corresponding

conservation measures required) are grossly over-

estimated during the ESA consultation process. Fur-

ther, the opportunities to select routes that avoid

impacts to habitat that listed species may actually use

are obscured and lost.

Many EWAC members also have existing federal!

authorizations for their facilities (such as FERC

licenses) that require consultation in accordance with

ESA section 7(a)(2). These authorizations include

provisions requiring that consultation be re-initiated

should new critical habitat be designated that may

be affected by the authorized action. The re-initiated

consultation could result in the licensee being required

to implement additional conservation measures to

maintain a valid license. This is an unreasonable and

costly outcome, particularly where the critical habitat

triggering the consultation is neither habitable by a

listed species nor likely to become habitable.

Finally, even where an EWAC member’s facility is

entirely private (and therefore does not trigger the

obligations of ESA section 7(a)(2)), financing can be

adversely impacted if critical habitat occurs within

or adjacent to the facility’s footprint. Financiers will

often impose more expensive terms to financing based

on the existence of critical habitat because of the

potential that a future federal authorization or permit

could be needed, triggering ESA section 7 consulta-

tion, resulting in unanticipated costs. It becomes that

much harder (indeed, nearly impossible) for all parties

to evaluate future financial risk if the Service has the

power to designate land occupied by a proposed project

or existing facility as critical habitat even though the

land lacks the physical or biological features needed to

sustain the listed species. No preconstruction survey

could identify or quantify this risk.

The Fifth Circuit’s approval of the designation of

“critical habitat” that is uninhabitable is such a

profound departure from any reasonable and workable

interpretation of the ESA that it warrants this Court’s

grant of certiorari and correction of that error.

Il. Contrary To The Fifth Circuit’s Ruling,

The ESA Dictates That “Critical Habitat”

Must Be Habitable.

The ESA defines occupied and unoccupied critical

habitat separately. Occupied habitat must be occu-

pied by the species at the time the species is listed as

threatened or endangered. 16 U.S.C. § 1532(5)A)(i).

It is further differentiated by the presence of features

that: (1) are “essential for the conservation of the spe-

cies”; and (2) “may require special management con-

siderations or protection.” Id.

Unoccupied critical habitat is defined by the

importance of the area to a listed species. It is limited

to areas that are not occupied at the time of species

listing but nevertheless are “essential for conservation

of the species.” 16 U.S.C. § 1532(5)(A)(ii).

Looking only to the second part of the statute’s defi-

nition of critical habitat, the Fifth Circuit determined —

wrongly — that the sole criterion the ESA provides for

designating unoccupied critical habitat is found in the

word “essential” in section 1532(5)(A\ii). Pet. App.

15a, 21a. The Fifth Circuit then ruled that the ESA

does not define “essential,” that the word is ambigu-

ous, and accordingly that the Service’s determination

that an unoccupied area is “essential” and so should

be designated as critical habitat (without regard to

whether the area is habitable) is entitled to Chevron

deference. Pet. App. 15a—16a, 21a, citing Chevron,

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.

837, 843 n.9 (1984).

The Fifth Circuit should not have advanced past the

first step in its Chevron analysis, as deference to the

Service’s interpretation of the ESA “is appropriate

only where ‘Congress has not directly addressed the

precise question at issue’ through the statutory text.”

Nat'l Ass’n of Home Builders v. Defenders of Wildlife,

551 U.S. 644, 665 (2007) (quoting Chevron, 467 U.S.

at 843). The Fifth Circuit mistakenly ignored both the

occurrence of the word “habitat” in the defined phrase

itself and the ESA’s operative provisions, which

plainly state that critical habitat is, first and foremost,

habitat for the listed species. See 16 U.S.C.

§§ 1533(a\(3)(A)D), 1536(a)(2).

In any event, the Fifth Circuit’s Chevron step 2 anal-

ysis is equally flawed, as the Fifth Circuit erred by

endorsing the Service’s unreasonable exclusion of hab-

itability from the criteria for critical habitat. “Even

under Chevron’s deferential framework, agencies must

operate ‘within the bounds of reasonable interpreta-

tion.” Util. Air Regulatory Grp. v. Envtl. Prot. Agency,

573 U.S.__,__, 184 S.Ct. 2427, 2442 (2014) (quoting

City of Arlington, Tex. v. Fed. Commc’ns Comm’n, 569

U.S. 290, 133 S.Ct. 1863, 1868 (2013)).

A. The Fifth Circuit failed to consider the

operative provisions of the ESA, which

plainly state that critical habitat must

be habitable.

The Fifth Circuit’s majority stated its view of the

central issue in this appeal categorically: “There is no

habitability requirement in the text of the ESA.” Pet.

App. 23a. But in making that sweeping pronounce-

ment, the Fifth Circuit was wrongly informed by hav-

ing read the statute’s critical habitat definition in iso-

lation and having failed to account for how the term is

used in the operative provisions of the ESA. See Pet.

App. 15a—27a (majority opinion analyzes only section

1532(5)(A)(G)Hil)).

“It is a fundamental canon of statutory construction

that the words of a statute must be read in their

context and with a view to their place in the overall

statutory scheme.” Nat'l Ass’n of Home Builders, 551

U.S. at 666 (internal quotation omitted). Failing to

follow this basic tenet caused the Fifth Circuit to adopt

a mistaken Service interpretation that is squarely

inconsistent with the plain meaning of the criteria for

critical habitat set out in other ESA provisions.

The Fifth Circuit began by ignoring the fact that the

term “critical habitat” includes the word “habitat,”

carrying with it the implication that an area is capable

of supporting a particular species, even if the species

does not currently occupy the area. This meaning

of the term, readily apparent on its face, is validated

by the way the term “critical habitat” is used in the

operative provisions of the ESA. “[Rleasonable statu-

tory interpretation must account for both ‘the specific

context in which .. . language is used’ and ‘the broader

context of the statute as a whole.” Util. Air Regulatory

Grp., 573 U.S. at _., 134 S.Ct. at 2442 (quoting

Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)).

Section 4 of the ESA authorizes the Service to

designate a subset of the habitat of a listed species as

“critical habitat”:

The Secretary, by regulation promulgated in

accordance with subsection (b) of this section

and to the maximum extent prudent and

determinable —

(i) shall, concurrently with making a deter-

mination under paragraph (1) that a spe-

cies is an endangered species or a threat-

ened species, designate any habitat of such

species which is then considered to be

critical habitat;

16 U.S.C. § 1533(a)(3)A)i) (emphasis added). This

provision only authorizes the Service to designate

“habitat of such species” as critical habitat. It does not

authorize critical habitat designations for areas that

are not habitable.

The definition of critical habitat in ESA section 3

must be read in the context of the criteria that ESA

section 4 also provides to the Service for designating

critical habitat—including the requirement that crit-

ical habitat be “habitat of such species.” 16 U.S.C.

§ 1533(a)(3)(A)i); see Util. Air Regulatory Grp., 573

U.S. at _, 134 S.Ct. at 2442 (interpretation must

account for “the broader context of the statute as a

whole”). These ESA provisions should be interpreted

in harmony; the definition in section 3 cannot nullify

the explicit requirement in section 4 that critical hab-

itat be habitat for the listed species, yet that is the

effect of the Fifth Circuit’s ruling.

Congress also described critical habitat as a subset

of a species’ habitat in ESA section 7, one of the stat-

ute’s central protections for listed species, directing all

federal agencies to consider the potential damage to

“habitat ... which is determined .. . to be critical” that

could stem from their actions and the actions they

approve:

Each Federal agency shall, in consultation

with and with the assistance of the Secretary,

insure that any action authorized, funded, or

carried out by such agency (hereinafter in this

section referred to as an “agency action”) is

not likely to jeopardize the continued exist-

ence of any endangered species or threatened

species or result in the destruction or adverse

modification of habitat of such species which

is determined by the Secretary, after consulta-

tion as appropriate with affected States, to be

critical, ....

16 U.S.C. § 1536(a)(2) (emphasis added). The phrase

“habitat of such species which is determined . . . to be

critical” refers to critical habitat designated under

ESA section 4. See Bennett v. Spear, 520 U.S. 154,

157-58 (1997). By using the formulation “habitat .. .

which . . . is critical” to describe “critical habitat,”

section 7 could not be more explicit that its require-

ments apply to the “critical” subset of the habitat for a

listed species.

The Fifth Circuit’s holding that “[t]here is no hab-

itability requirement in the text of the ESA,” Pet. App.

23a, is flatly contradicted by the plain language of ESA

sections 4 and 7. Both are explicit that “critical habi-

tat” must be habitat of the listed species.

B. The Fifth Circuit wrongly gave Chevron

deference to a Service interpretation

of unoccupied critical habitat that con-

flicts with the plain language of the

ESA.

As discussed in the prior section, the Service’s deter-

mination that unoccupied critical habitat need not be

habitable by the listed species rests upon 16 U.S.C.

§ 1532(5)(A)(ii) read in isolation from the rest of the

statute. The Service’s interpretation of that provision

conflicts with the plain language of the other ESA pro-

visions that govern the actual designation of critical

habitat and the protection of that habitat in federal

agency decision-making, 16 U.S.C. §§ 1533(aX3)(A)(i)

and 1536(a)(2).

Deference to the Service’s interpretation of the ESA

“is appropriate only where ‘Congress has not directly

addressed the precise question at issue’ through the

statutory text.” Nat'l Ass’n of Home Builders, 551 U.S.

at 665 (quoting Chevron, 467 U.S. at 843). “In making

the threshold determination under Chevron” as to

whether congressional intent is clear or ambiguous in

the language of a statute, “a reviewing court should

not confine itself to examining a particular statutory

provision in isolation.” Id. at 666 (quoting Food and

Drug Admin. v. Brown & Williamson Tobacco Corp.,

529 U.S. 120, 132 (2000)).

The Fifth Circuit should have stopped after the first

step in its Chevron analysis. Here, congressional intent

is clear that critical habitat is a subset of the habitat

of a listed species. 16 U.S.C. §§ 1533(a\3)(A\i),

1536(a\(2). The Fifth Circuit never considered those

provisions. If it had done so, it would not have errone-

ously claimed that “there is no habitability require-

ment in the text of the ESA.” Pet. App. 23a.

“A statutory ‘provision that may seem ambiguous in

isolation is often clarified by the remainder of the stat-

utory scheme . . . because only one of the permissible

meanings produces a substantive effect that is com-

patible with the rest of the law.” Util. Air Regulatory

Grp., 573 U.S. at __, 134 S.Ct. at 2442 (quoting United

Sav. Assn. of Tex. v. Timbers of Inwood Forest Assocs.,

Ltd., 484 U.S. 365, 371 (1988)) (ellipsis in original).

The ambiguity the Fifth Circuit found in the ESA’s

definition of unoccupied critical habitat is removed by

the remainder of the ESA’s statutory scheme. It is a

bedrock requirement of the statute, when read as a

whole, that an area must provide habitat for a species

if it is to be designated as occupied or unoccupied

critical habitat. See 16 U.S.C. §§ 1533(aX3) Ai),

1536(a)(2). The Fifth Circuit should not have given

Chevron deference to the Service’s determination

otherwise, as Congress directly addressed that precise

question in the ESA’s operative provisions.

C. The Fifth Circuit wrongly gave Chevron

deference to a Service interpretation

that goes beyond reason.

The Fifth Circuit concluded that it was obligated to

extend Chevron deference to the Service’s determina-

tion that an area that is not and could not be occupied

by the dusky gopher frog is, nevertheless, critical

habitat. Pet. App. 15a, 2la—22a. It found that the

phrase “essential for the conservation of the species,”

appearing in the definition of unoccupied critical habi-

tat in 16 U.S.C. § 1532(5)(AX ii), gave discretion to the

Service, noting that the ESA does not define “essen-

tial.” Pet. App. 15a. It held that, by using this unde-

fined term, Congress delegated authority to the

Service to determine whether an unoccupied area is

“essential” for a species and that when the Service

promulgates such a determination through formal

rulemaking it is entitled to Chevron deference. Pet.

App. 15a.

As explained above, Chevron deference was unwar-

ranted as to the central question here, since portions

of the statute ignored by the Fifth Circuit plainly state

congressional intent that critical habitat be habitable

by a species. Contrary to the Fifth Circuit’s holding,

“an agency interpretation that is inconsistent with the

design and structure of the statute as a whole does not

merit deference.” Util. Air Regulatory Grp., 573 U.S.

at _, 134 S.Ct. at 2442 (internal quotation omitted).

However, even without the guidance provided by

other portions of the ESA, the Fifth Circuit was wrong

to give deference to the Service’s interpretation. “Even

under Chevron’s deferential framework, agencies

must operate ‘within the bounds of reasonable inter-

pretation.” /d., 134 S.Ct. at 2442. Chevron “directs

courts to accept an agency’s reasonable resolution of

an ambiguity in a statute that the agency adminis-

ters.” Mich. v. Envtl. Prot. Agency, 576 US. _, _ ,

135 S.Ct. 2699, 2707 (2015). But an agency’s reading

of a statute must still remain within the bounds of

reasonable interpretation. Jd.

Reading the ESA to allow an uninhabitable area to

be designated as “critical habitat” strays far beyond

the bounds of reasonable interpretation and cannot

survive judicial scrutiny. See id. (EPA wrongly inter-

preted the word “appropriate” in the Clean Air Act

provision as allowing it to ignore costs of pollution

controls).

There are limits to the meaning of “essential,” and

so to the Service’s discretion. Here, the Service desig-

nated as “essential” an area that provides no conserva-

tion benefit to the dusky gopher frog and will not do so

in the future. To deem an area “essential” to a species

that has no connection to the species and no foresee-

able ability to sustain the species goes beyond the

bounds of reason. Even where Chevron deference does

apply, it has limits, and those limits were exceeded

here. See id.

Ill. The Fifth Circuit’s Ruling Conflicts With

Decisions Of The Ninth Circuit.

The Fifth Circuit held that requiring unoccupied

habitat to be habitable “effectively conflates” the sepa-

rate standard for unoccupied land with the standard

for land occupied by a species, and that only occupied

habitat must contain all of the relevant physical or

biological features to support a species. Pet App. 23a.

As a result, the Fifth Circuit imposed a significantly

less stringent standard on the designation of unoccu-

pied habitat, which here contained only one of three

features necessary for survival of the dusky gopher

frog, from the standard applicable to designation of

occupied habitat. Id.

This holding put the Fifth Circuit in direct conflict

with Ninth Circuit decisions recognizing that the crite-

ria for unoccupied critical habitat are more stringent,

not less stringent, from those applicable to occupied

critical habitat. As was made clear in Arizona Cattle

Growers’ Association v. Salazar, the ESA “imposf{es] a

more onerous procedure on the designation of unoccu-

pied areas” as critical habitat. 606 F.3d at 1163.

At issue in Arizona Cattle Growers was whether the

Service unlawfully designated areas containing no

Mexican spotted owls as occupied critical habitat in

order to “bypass{ |] the statutory requirements for

designating unoccupied areas.” Id. at 1162. Directly

after reciting the ESA’s dual definition of “critical

habitat,” the Ninth Circuit stated: “The statute thus

differentiates between ‘occupied’ and ‘unoccupied’ areas,

imposing a more onerous procedure on the designation

of unoccupied areas by requiring the Secretary to

make a showing that unoccupied areas are essential

for the conservation of the species.” Jd. at 1163.

The Ninth Circuit then went on to analyze at length

the meaning of “occupied,” the term that underpinned

the factual question of “whether the [Service] treated

unoccupied areas as occupied to avoid this more oner-

ous process.” Id. Such extended analysis would not

have been necessary but for the practical regulatory

import of the dual definitions of critical habitat and

the Ninth Circuit’s recognition that the standard for

designation of unoccupied habitat is more onerous.

See id. at 1163-67.

Later in 2010, the Ninth Circuit reiterated that the

standard for unoccupied critical habitat “is a more

demanding standard than that of occupied critical

habitat.” Home Builders Ass’n of N. Cal., 616 F.3d at

990 (9th Cir. 2010). There, the plaintiffs claimed that

the Service had conflated occupied and unoccupied

habitat in certain designations of areas containing

vernal pools as critical habitat for 15 species. Id. The

Ninth Circuit reasoned that no requirement exists

that each designated area be classified as occupied or

unoccupied, and that:

In any event, [the Service] ultimately con-

cluded that “the areas designated by this final

rule, including currently occupied and unoc-

cupied areas, are essential for the conserva-

tion of the species.” Essential for the con-

servation is the standard for unoccupied habi-

tat and is a more demanding standard than

that of occupied critica) habitat. Thus, basing

the designation on meeting the more demand-

ing standard poses no problem.

Id. (internal citations omitted). The Ninth Circuit

upheld the critical habitat designation because it met

the higher standard for designation of unoccupied

habitat regardless of whether some areas were in fact

occupied. Id.

In contrast, the Fifth Circuit here interpreted “essen-

tial for the conservation of the species” as imposing a

decidedly lower standard on the designation of unoccu-

pied habitat. By granting such liberal deference to the

USFWS interpretation, the Fifth Circuit effectively

inverted the rigor associated with each type of critical

habitat designation and (apparently unknowingly)

rejected the Ninth Circuit’s patently contrary inter-

pretation of the plain language of the ESA. Further,

the Fifth Circuit majority opinion failed to acknow-

ledge or directly address the relevant portions of this

contrary case law of the Ninth Circuit. This Court

should grant certiorari to resolve this conflict between

the circuits regarding one of the primary mechanisms

for the Service’s implementation of the ESA.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,