July 29, 2019 by Daniel Farber

The Flight of the Bumblebee

Originally published on Legal Planet.

Last Friday, the Fourth Circuit Court of Appeals halted efforts to build a natural gas pipeline because the Trump administration had done such a lousy job of showing its compliance with the Endangered Species Act. This was one of the administration's many losses in court. The case involved a perfect example of "arbitrary and capricious" decision making, to use the legal terminology. In simpler terms, the government's explanation for its decision was as full of holes as a sieve. This was such a textbook case, I'll be surprised if the court's opinion doesn't make it into one of the environmental law casebooks.

The case, Defenders of Wildlife v. Dept. of Interior, was actually back before the Fourth Circuit for the second time. In 2017, the U.S. Fish & Wildlife Service (FWS) issued a Biological Opinion saying that the project wouldn't jeopardize the survival of three endangered species but requiring the project to avoid disturbing portions of the land. About six months later, the Fourth Circuit ruled that the FWS had failed to explain why they couldn't place numerical limits on the number of animals killed, which is the preferred approach. The FWS then went …

Nov. 30, 2018 by Lisa Heinzerling

This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

In a mixed-bag ruling, a unanimous Supreme Court returned Weyerhaeuser Co. v. U.S. Fish and Wildlife Service to the U.S. Court of Appeals for the 5th Circuit to decide several questions not answered on the first go-round. Chief Justice John Roberts’ opinion for the court appears calculated to decide just enough to justify shipping the case back to the lower court.

The case involves the Fish and Wildlife Service’s designation, under the Endangered Species Act, of property in Louisiana as "critical habitat" for the dusky gopher frog. The frog has not lived on this property for many years, but the service concluded that the property was essential to the conservation of the frog – and thus appropriately deemed critical habitat – because it contains high-quality …

Oct. 5, 2018 by Alejandro Camacho

This op-ed originally ran in The Hill. It was co-authored with Melissa Kelly, the staff director and attorney at the Center for Land, Environment, and Natural Resources (CLEANR).

The bald eagle, sea otter, timber wolf — these iconic animals and more have been saved by the Endangered Species Act (ESA). But the Trump administration doesn't seem to care about our country's natural heritage. It's using questionable arguments about the popular law in an effort to gut protections and convert our public lands into private assets.

The administration's destructive intent is apparent in the proposed revisions to the ESA by the U.S. Fish and Wildlife Service and NOAA Fisheries. These changes appear to be aimed at providing more opportunities for business interests to influence conservation decisions. Indeed, the administration has proposed to turn the law on its head by allowing consideration of economic impacts in listing decisions, restricting …

Sept. 28, 2018 by Lisa Heinzerling

This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

Editor's note: You can read Professor Heinzerling's follow-up post, which analyzes the oral arguments in this case, on SCOTUSblog.

A tiny amphibian takes center stage in the first case of October 2018 term. The dusky gopher frog is native to the forested wetlands of the southern coastal United States, with a historical range from the Mississippi River in Louisiana to the Mobile River delta in Alabama. The frog breeds in ephemeral ponds – ponds that are wet for brief periods and then dry out completely – and spends the rest of its life in upland, open-canopy forests, living in burrows created by other animals. Today, the only known remaining population of the dusky gopher frog lives on a single pond in Mississippi.

In 2001, the U.S. Fish …

July 25, 2018 by Amy Sinden

This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.

If Judge Brett Kavanaugh's Supreme Court confirmation process goes as quickly and affirmingly as his supporters hope, one of the cases he'll hear on his first day on the bench will invite him to consider an imponderable question: Whether it's possible to put a dollar value on an endangered species.

Weyerhaeuser v. U.S. Fish and Wildlife Service will raise an important and long-controversial aspect of environmental law: the use of cost-benefit analysis in agency decision-making. The Court may well be able to decide this case without diving into the most contentious aspects of the long-running cost-benefit debate. Still, it could provide an opportunity for a glimpse into how a new justice would approach a set of issues that, while seemingly technical, are central to deciding the stringency of …

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More on CPR's Work & Scholars.
July 29, 2019

The Flight of the Bumblebee

Nov. 30, 2018

Opinion Analysis: Frogs and Humans Live to Fight Another Day

Oct. 5, 2018

The Hill Op-Ed: Blind Focus on 'Energy Dominance' May Cripple Endangered Species Act

Sept. 28, 2018

Argument Preview: Justices to Consider Critical-Habitat Designation for Endangered Frog

July 25, 2018

Imagining a Justice Kavanaugh: For One Endangered Frog, Might Justice Scalia Have Been a Kinder, Gentler Jurist?