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Endangered Species Act and judicial review

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Judicial review is the ability of individuals to seek a federal court's examination of a federal agency's actions. Federal courts can review whether the particular federal action is justified given the administrative record available to the federal agency making the action. Under judicial precedent and federal law, courts often side with a federal agency as long as the agency's action is reasoned and otherwise in accordance with federal law, an act known as judicial deference. Judicial deference means that a court will not substitute its own judgment for the federal agency's judgment, particularly in complex issues where technical or scientific expertise is involved. Actions such as listing a species, rejecting a public petition to list a species, delisting a species, and keeping a species off the federal list can be reviewed in federal court.[1]

Background

Under the Administrative Procedure Act (APA) of 1946, final agency decisions are subject to judicial review, or an individual's ability to seek a federal court's examination of a federal agency's actions. Judicial review is permitted if an individual experiences a legal wrong because of a federal agency's actions or the agency's actions adversely affect the individual. Judicial review applies to actions "for which there is no other adequate remedy" other than a court ruling. Some federal statutes do not allow for judicial review. For example, under the Endangered Species Act, proposals to list a species cannot be judicially reviewed because proposals are not final actions carrying legal or other consequences.[1]

Under the APA, a court can review an agency's final action and decide whether the action is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" (commonly known as the arbitrary and capricious standard). Under this standard, a federal court determines whether the agency's action was reasoned, carried out using legally prescribed procedures, and otherwise plausible with regard to the facts that the agency relied upon at the time of its decision. A court can strike down agency actions if they have no "rational connection between the facts found and the choice made," are contrary to the evidence the agency used at the time of its decision, or are otherwise implausible that the actions "could not be ascribed to difference in view or the product of agency expertise." Under federal case law, federal courts are encouraged to defer to the agency's judgment and to prevent judicial interference with an agency's actions if the actions otherwise meet the arbitrary and capricious standard.[1][2][3][4]

ESA and judicial review

The following Endangered Species Act (ESA) actions by the U.S. Fish and Wildlife Service or National Marine Fisheries Service can be reviewed by a federal court:

  • "Not warranted" decision: The agency's decision not to list a species as endangered or threatened can be challenged in court. For example, in 2003 the Center for Biological Diversity and others sued the Fish and Wildlife Service for its decision not to list a particular hawk species as endangered or threatened, alleging that the agency's decision was arbitrary and capricious. The United States Court of Appeals for the 9th Circuit sided with the service's decision, ruling that the record the agency used supported its action.[5]
  • "Warranted but precluded" decision: The decision to keep a candidate species off the federal list of endangered and threatened species due to other priorities is known as a warranted but precluded decision, which can be reviewed in federal court under the arbitrary and capricious standard. For example, in 1996 the United States District Court for the District of Oregon ruled that the Fish and Wildlife Service's decision to keep a fish species off the federal list was arbitrary and capricious, arguing that the agency's decision relied on factors that were irrelevant and inconsistent.[6]
  • Final listing decision: A federal agency's final decision to list or delist a species can be reviewed in federal court. Courts do not review data to determine whether the agency's decision is supported. Federal courts decide whether the agency's decision passes the arbitrary and capricious standard based on the evidence available at the time of the agency's decision. For example, in 2013 the United States Court of Appeals for the District of Columbia Circuit upheld the Fish and Wildlife Service's decision to list the polar bear as a threatened species after the listing was challenged as arbitrary and capricious. The court ruled that the evidence before the agency supported the listing's conclusions and that the legal challenge to the listing represented a difference of view on policy.[7][8]
  • Section 7 consultation decision: Section 7 of the ESA requires any federal agency to conduct an assessment identifying any negative impact on a listed species or critical habitatthat the agency's activities bring. The agency must consult with the Fish and Wildlife Service and submit the best scientific information available about an activity's impact on a listed species. The Fish and Wildlife Service can issue its own opinion about the activity. The service's opinion is a binding final action and subject to judicial review. For example, in 2014 the United States Court of Appeals for the 9th Circuit upheld the Fish and Wildlife Service's assessment permitting reduced water flow to agriculture and California residents in order to protect the delta smelt, an endangered fish species.[9][10]Cite error: Closing </ref> missing for <ref> tag

See also

Footnotes

  1. ↑ 1.0 1.1 1.2 Conservation Biology, "Arbitrary and Capricious Species Conservation," accessed December 15, 2015
  2. ↑ Legal Information Institute, "5 U.S. Code § 701 - Application; definitions," accessed December 15, 2015
  3. ↑ Legal Information Institute, "5 U.S. Code § 702 - Right of review," accessed December 15, 2015
  4. ↑ Legal Information Institute, "5 U.S. Code § 706 - Scope of review," accessed December 15, 2015
  5. ↑ Environmental Law, "Center for Biological Diversity v. Badgley," accessed December 15, 2015
  6. ↑ Environmental Law Reporter, "Friends of the Wild Swan, Inc. v. United States Fish & Wildlife Service," accessed December 15, 2015
  7. ↑ Climate Science Watch, "Court of Appeals upholds decision to protect polar bears as a threatened species," March 13, 2013
  8. ↑ Keeping Texas First, "Legal Challenges to Endangered Species Act Listing Actions: Questions and Answers," accessed December 16, 2015
  9. ↑ Reuters, "In drought-stricken California, court rules smelt fish get water," March 14, 2014
  10. ↑ Fresno Bee, "San Francisco appeals court upholds plan to protect delta smelt," March 13, 2014
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