Roberts emerges as adept leader

OT18

As the U.S. Supreme Court formally convened on the proverbial first Monday in October, and the justices settled in to hear oral arguments in their first case of their 2018 term, Chief Justice John Roberts quickly realized he had a problem.

Those arguments were held in an important Endangered Species Act case, Weyerhaeuser Co. v. U.S. Fish and Wildlife Service, 17-71. The case raises two key issues: (1) How far federal wildlife officials can go to create "critical habitat" to protect animal species they have listed under the ESA; and (2) when and under what circumstances parties dissatisfied with federal regulators' critical habitat determinations may obtain judicial review of those administrative decisions.

As the attorneys' legal arguments and the justices' active questioning of counsel proceeded in Weyerhaeuser, it became apparent that the justices were evenly split into two opposing camps: Chief Justice Roberts and the court's other three conservatives seemed strongly inclined to vote for the private landowners challenging the government's critical habitat determination, while the four progressive justices appeared disposed to vote in favor of government regulators. (The court was short-handed in Weyerhaeuser, with only eight justices participating; the seat formerly held by Justice Anthony Kennedy would not be filled until a week later, after now-Justice Brett Kavanaugh was confirmed by the U.S. Senate after an acrimonious hearings process.)

The Oct. 1 arguments posed a formidable challenge for Chief Justice Roberts: A 4-4 split among the justices would result in a summary affirmance of the 5th U.S. Circuit Court of Appeals' earlier decision (in favor of the government); alternatively, the justices could set the Weyerhaeuser case for re-argument at some later date, when Justice Kavanaugh would be able to participate and vote in the case. Neither was likely an appealing option for the chief justice.

So it was indeed a surprise to the parties, their lawyers and interested observers alike when the court on Nov. 27 issued a unanimous decision, authored by Chief Justice Roberts himself, which provided the Weyerhaeuser plaintiffs with a modest, incremental victory while remanding the case to the 5th Circuit for further proceedings. 2018 DJDAR 11125. That peculiar result is a tribute to the chief justice's behind-the-scenes strategic talents and leadership skills, nudging his disparate colleagues toward a narrower ruling they all could support. Those attributes will prove critically important as Roberts emerges as the influential, swing vote on an increasingly-conservative court in the post-Kennedy era.

The legal battle in Weyerhaeuser centers on the government's designation of critical habitat for the dusky gopher frog, a decidedly uncharismatic animal species the U.S. Fish and Wildlife Service listed as endangered under the ESA in 2001. However, the agency failed to designate critical habitat for the frog (as is generally required for listed species under Section 4(b) of the ESA) until 2010, and then only in response to separate litigation brought by the Center for Biological Diversity to compel such a habitat designation.

While the frog had previously inhabited significant portions of Mississippi, Alabama and Louisiana, at the time of its critical habitat designation in 2010 the dusky gopher frog population had dwindled to approximately 100 frogs located in a single pond in southern Mississippi. That population decline is the direct result of human development and the resulting destruction of 98 percent of the unique forests upon which the dusky gopher frog depends for its survival.

As part of its critical habitat designation, the USFWS included 1,500 acres of private lands in southern Louisiana that, while historically occupied by the listed frog, contained none of the species in 2010. Significantly, the USFWS also acknowledged that while the designated 1,500 acres could not sustain the frog in the land's present condition, that property could be transformed into viable frog habitat "with reasonable effort" by the government and/or private parties. Finally, the USFWS completed a report under ESA Section 4(b)(2) on the probable economic impact of designating these lands and transforming them into the requisite critical habitat for the frog. The agency concluded that the potential, substantial costs involved were not "disproportionate" to the conservation benefits of critical habitat designation. It is these administrative determinations that precipitated the Weyerhaeuser litigation.

Before the Supreme Court, the government (contrary to its position in the lower courts) conceded that the statutory term "critical habitat" as used in the ESA must be interpreted to be limited to actual habitat of the frog. But the government argued that the proper interpretation of "habitat" encompasses areas that -- like the 1,500 acres designated by the USFWS -- require some degree of modification to support a sustainable population of the listed species. The private property owners, conversely, contended that as a matter of law "habitat" cannot include areas where the frog could not currently survive.

Chief Justice Roberts' opinion on behalf of a unanimous court is rather Solomonic in nature: Rather than decide the definitional question, the decision remands the issue back to the 5th Circuit for determination, since the government is now advancing an argument on that point that it had not presented below.

The second issue -- whether the USFWS's administrative determination regarding the economic impact of its critical habitat determination is subject to judicial review -- received a more definitive response from the justices. Chief Justice Roberts' opinion holds that such agency findings are indeed properly reviewable by the federal courts. The decision reversed the 5th Circuit on that threshold procedural question and similarly remanded it to the 5th Circuit for a determination as to whether the USFWS's economic impact determination was arbitrary, capricious or an abuse of agency discretion.

The Supreme Court's ruling on the latter issue represents a clear procedural win for the private property owners who brought the Weyerhaeuser litigation. Unlike some commentators, however, I believe that Chief Justice Roberts' opinion on the substantive -- and more consequential -- "critical habitat" question does not necessarily mean that the government is destined to lose on that issue on remand to the 5th Circuit. Instead, the decision simply reframes the issue in a manner that is somewhat less favorable to the government but not necessarily dispositive of the substantive outcome on remand.

In conclusion, it's the backstory of the Weyerhaeuser case that is more intriguing and will perhaps ultimately be more consequential than the four corners of the court's opinion. Chief Justice Roberts was somehow able to convince his fellow justices -- who were deeply divided on the critical habitat issue at oral argument -- to accept a more modest result of Roberts' creation. His leadership thus produced a unified court that resolved important procedural and substantive issues arising under the nation's most controversial environmental law -- the Endangered Species Act. In fashioning that compromise, Roberts displayed creative thinking and adroit behind-the-scenes brokering skills that would have made Machiavelli proud.

The takeaway message of the Weyerhaeuser case, along with several other high-profile Supreme Court decisions like the same-sex marriage case from a few years ago, is that Chief Justice Roberts has emerged as a strong and forceful leader of the court. Indeed, the Supreme Court and the nation have not seen such a dynamic, strategic and proactive chief justice since Earl Warren.

That fact has important long-term consequences not just for environmental law, but for American jurisprudence generally.