High Court's Frog Opinion Reaches Beyond ESA

By Keith Bradley (December 19, 2018, 12:50 PM EST) -- The U.S. Supreme Court's recent decision in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service made headlines because of the sad outcome for the dusky gopher frog, an endangered species for which the FWS had identified critical habitat. The court interpreted the Endangered Species Act to allow critical habitat designations only in areas that the FWS determines are truly habitat for a given species. The ESA is unquestionably a statute with broad scope, and the Weyerhaeuser opinion is important guidance for the FWS' decisions under the statute. However, a second aspect of the opinion will likely have even larger consequences because it reclaims judicial authority over agency decision-making that had been eroding. Weyerhaeuser provided crucial instructions to federal courts about the availability of judicial review under the Administrative Procedure Act....

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