Timing of Kavanaugh’s Confirmation Is Key to Case on Wildlife Threatened by Climate Change

If the SCOTUS nominee takes the bench by October 1, his vote will likely decide if endangered species law can protect wildlife in a changing climate.

Update November 27th: The Supreme Court  sent the case back to the 5th U.S. Circuit Court of Appeals for further consideration. The unanimous eight-justice ruling says the lower court must clarify the definition of "habitat" under the Endangered Species Act and determine whether the Louisiana property meets that definition.​

Update October 2nd: With Brett Kavanaugh's confirmation process for the Supreme Court of the United State delayed, the eight sitting justices heard the case on Monday and will also vote on it, likely resulting in a 4-4 split. 

When the U.S. Supreme Court justices don their robes for a new term on October 1, on day one they’ll hear arguments for a major case that concerns a small frog and big questions about endangered species protections as climate change continues to advance.

On one side of the lawsuit are federal agencies that are directed to protect land and stave off the dusky gopher frog's extinction; on the other, timber companies aim to retain control over how they use private land which the critically endangered amphibians historically inhabited. The legal outcome could stifle the government’s ability to carve out new havens for vulnerable species as climate change pushes them out of historical habitats. And the court’s ruling, legal experts say, likely hinges on whether SCOTUS nominee Brett Kavanaugh is confirmed to the nation’s highest court by October 1—or his confirmation is derailed this week by allegations of sexual assault.

President Trump nominated Kavanaugh, a federal judge who worked in the White House Counsel’s office during the George W. Bush Administration, to fill the SCOTUS vacancy opened when Justice Anthony Kennedy retired in July. Until the Senate confirms a new justice, the typically nine-member court—on which Kennedy often served as a swing vote—has only eight members. Those eight justices would likely issue a four–four tie vote on the upcoming caseWeyerhaeuser Company v. United States Fish and Wildlife Service, legal experts say, and uphold lower courts’ decisions to defer to the U.S. Fish and Wildlife Service on its interpretation of endangered species law.

In 12 years on the U.S. Court of Appeals for the D.C. Circuit, Kavanaugh sided against endangered species protections in 17 out of 18 cases, according to an analysis by Bill Snape, a law professor at American University and senior counsel with the Center for Biological Diversity, which is arguing the case alongside the government. Based on his prior record, if Kavanaugh is confirmed by the end of the week and the other justices vote as expected, his tie-breaking ninth vote would likely restrict the agency’s authority to designate certain kinds of critical habitat for endangered species.

That could spell trouble for the roughly 135 dusky gopher frogs left on Earth, all of which now live in Mississippi. The stocky amphibian once inhabited Mississippi, Louisiana, and Alabama, but its population dwindled as development devoured its specialized habitat: seasonal breeding ponds beneath open-canopy longleaf pine forest. It was listed as federally endangered under the Endangered Species Act in 2001, and in 2012 FWS designated nearly 6,500 acres of public and private land in Mississippi and Louisiana as critical habitat for the frog—meaning the land is essential for its recovery and some development is restricted.

The critical habitat includes 1,544 acres of private land in St. Tammany Parish, Louisiana, that aren't quite right for the frogs: The property's ponds are ideal for breeding but covered by close-canopied loblolly pine forests. While no dusky gopher frogs have been found there since 1965, the law is clear that a species doesn’t need to currently live in an area for it to count as critical habitat. In this case, however, the landowners argue that their property would require extensive restoration work to support the species, including tearing out loblolly pine and replacing it with rarer longleaf pine. Only then could frogs be relocated there to give the species some buffer in case drought, flood, or disease were to wipe out the Mississippi stronghold.

The plaintiffs—timber giant Weyerhaeuser and other loblolly-pine harvesters—argue that designating critical habitat on land where the frog currently can't survive is not justified under the Endangered Species Act. “Habitat need not be currently inhabited; but uninhabitable land is not ‘habitat,’” Weyerhaeuser's attorneys write. The landowners also claim they stand to lose up to $34 million by not developing the property (a figure defendants' attorneys say is misleading).

So in 2013 Weyerhaeuser took FWS to court, arguing that the agency abused its authority in improperly designating unsuitable land as critical habitat and ignoring the significant economic cost of the critical habitat designation.

Two lower courts (the U.S. District Court for the Eastern District of Louisiana and the 5th Circuit Court of Appeals) both sided with FWS, upholding the agency’s ability to designate unoccupied and currently unsuitable frog habitat as critical. Despite the losses, Weyerhaeuser appealed the suit to the nation’s highest court.

The Supreme Court usually hears cases to settle disagreements among lower courts, which isn't the situation here and could signal trouble for FWS's argument. “Usually that means there are four justices who want to reverse, and they think they can convince a fifth justice,” says J.B. Ruhl, an endangered species-law expert at Vanderbilt University. “It’s not a good sign from the start. I think it was: ‘Hey, here’s a case where an agency is taking an extremely aggressive stance under a statute, and it sure looks like it’s gone too far.’” Local governments, 18 states, and the U.S. Chamber of Commerce have filed briefs supporting Weyerhaeuser’s arguments.

“We applaud the Court for taking up this case and we’re hopeful the outcome will ensure a designation cannot be made to an area without firm evidence that it supports the endangered or threatened species in question,” Weyerhaeuser’s spokesperson Andrew O’Brien wrote in an email to Audubon.

If the justices do reverse the lower-court decisions, it might change little about endangered species management today, Ruhl says, since it’s not common to designate critical habitat that requires significant hands-on restoration. But the court could issue a muscular ruling that prevents FWS from designating any critical habitat that isn’t immediately ready for species as-is, even if climate change will soon render it a suitable and necessary sanctuary.

"That’s where I get worried about this case,” Ruhl says. Such a ruling could severely cripple the agency’s ability to help endangered species adapt to climate change. Take, for example, the Ridgway’s Rail, which lives mainly in coastal marshes. As sea level rises, the birds will need to move inland to survive—and likely to new marshes created by climate change or other human intervention.

“Birds are in the center of the bullseye for climate change disruption,” says Patrick Parenteau, a Vermont Law School professor who filed a brief supporting the government’s position, “so I would say this decision has important implications for any number of species, especially Arctic, Antarctic, pelagic, and high-elevation species that could qualify for protection under the Endangered Species Act and be subject to U.S. control during some part of their life cycle.”

Parenteau notes that scientists with the National Audubon Society have identified 314 bird species projected to lose more than half of their ranges by 2080 if climate change continues at its current pace. Many of those species may be forced to adapt to novel habitats, or even be relocated by people. A ruling in favor of the timber industry in the forthcoming case would declaw the Endangered Species Act’s ability to preemptively protect and restore those critical future habitats.

Weyerhaeuser’s argument fails to acknowledge the reality of a rapidly changing world and the government’s need for flexibility in responding to those changes, says Collette Adkins, senior attorney for the Center for Biological Diversity. “The idea that you can only designate what is right now in perfect condition for a species really just doesn’t make sense when we know that species ranges shift,” she says.

If the Senate confirms Kavanaugh before the end of this month, Ruhl expects the court will decide against FWS. “I’m not a betting man, but I’d put a dollar on that,” he says. Even an eight-member bench could reverse the lower court ruling if centrist liberals Elena Kagan or Stephen Breyer view the case as more about administrative law than endangered species, Ruhl adds.

For her part, Adkins is holding out hope that Kavanaugh will not be confirmed in time, leaving the eight justices to split four-four and uphold the critical habitat designation so the dusky gopher frog might once again breed in Louisiana wetlands. “I’m definitely watching very closely what’s happening with Kavanaugh,” she says, “for a lot of reasons.”