On Tuesday, the 9th Circuit Court of Appeals affirmed the Commerce Department’s designation of critical habitat for the southern distinct population segment of green sturgeon, once again reminding us just how difficult it is to fight city hall – or the capital – where the ESA is concerned.
Section 4 of the EPA provides that
The Secretary shall designate critical habitat . . . on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of exclusion outweigh the benefits of specifying such area as part of critical habitat, unless he determines, based on the best scientific and commercial data available, that the failure to designate such area as critical habitat will result in the extinction of the species concerned.
The court concluded that, while the Secretary must take “into consideration the economic impact” of a potential designation, this obligation is separate from the completely discretionary choice whether to exclude an area from designation based on a cost-benefit analysis. The Court further concluded that the record supported the Department’s assertion that it did take “into consideration” the costs of a designating habitat. Thus, the appellants could get no relief under the first sentence of Section 4.
In addition, the use of the word “may” in the second sentence means that the decision whether to exclude areas from designation is “committed to agency discretion by law” – and is thus unreviewable.
It’s easier to fight City Hall than ESA critical habitat designations.