Friday, November 30, 2018

The Chief's Well-Written Weyerhaeuser Opinion

On November 27, 2018, Chief Justice Roberts issued the Court’s unanimous opinion in Weyerhaeuser v. United States Fish and Wildlife Service. Weyerhaeuser involves the Service’s designation of property in Louisiana as a “critical habitat” of the endangered dusky gopher frog. The problem, according to Weyerhaeuser, the owner of part of that property, is that no dusky gopher frogs have been observed on the site since 1965, and the current tree farm on the site has created a closed-canopy that Weyerhaeuser claims is inhospitable to the frog.

This case is particularly interesting to me because I teach and write on animal law. The opinion contains many classic Chief Justice Roberts techniques and is another example of why he is one of the two best writers on the Court.

The Description of the Dusky Gopher Frog

Chief Justice Roberts begins with a lengthy description of the dusky gopher frog:

The amphibian Rana sevosa is popularly known as the “dusky gopher frog”—“dusky” because of its dark coloring and “gopher” because it lives underground. The dusky gopher frog is about three inches long, with a large head, plump body, and short legs. Warts dot its back, and dark spots cover its entire body. It is noted for covering its eyes with its front legs when it feels threatened, peeking out periodically until danger passes. Less endearingly, it also secretes a bitter, milky substance to deter would-be diners.

The Chief is known for including this type of peripheral but interesting information in his writing and has been doing so since his time as an advocate.

As Greg Lipper (@theglipper) noted, these details add interest and encourage the reader to continue reading this “technical” opinion on statutory interpretation and reviewability of agency action. Chief Justice Roberts used the same technique when he represented Alaska in Alaska v. EPA, another technical but more complicated case involving statutory interpretation and reviewability.

And Jamie Santos (@Jamie_ASantos) is right too—including these types of details can be tricky, and Chief Justice Roberts does it very well. A brief with too many irrelevant details can come off as unfocused or campy, so this technique must be employed with great care.

A Description of “[H]ow [A]djectives [W]ork”

One issue in the case turns on the meaning of the phrase “critical habitat.” Chief Justice Roberts writes:

According to the ordinary understanding of how adjectives work, “critical habitat” must also be “habitat.” Adjectives modify nouns—they pick out a subset of a category that possesses a certain quality. It follows that “critical habitat” is the subset of “habitat” that is “critical” to the conservation of an endangered species.

I love both this description and the unstuffiness of it. Many would be tempted to write “the way in which adjectives operate in the English language.” Chief Justice Roberts resists that temptation—“how adjectives work” is a wonderfully short description.

Avoiding First, Second, Third etc.

I don’t love the formulaic “first, second, third” argument markers, but they are better than nothing.* Jamie Santos noted recently, though, that replacing these markers can take writing to the next level. 

Chief Justice Roberts does this expertly in the Weyerhaeuser opinion.

There is, at the outset, reason to be skeptical of the Service's position. The few cases in which we have applied the § 701(a)(2) exception involved agency decisions that courts have traditionally regarded as unreviewable . . . .

Although the text meanders a bit, we recognized in Bennett v. Spear, 520 U.S. 154 (1997), that the provision describes a unified process for weighing the impact of designating an area as critical habitat. . . .

The use of the word “may” certainly confers discretion on the Secretary. That does not, however, segregate his discretionary decision . . . .

Section 4(b)(2) requires the Secretary to consider economic impact and relative benefits before deciding whether the exclude an area from critical habitat or to proceed with a designation….

Chief Justice Roberts’ explanation of the Court’s reasoning avoids the unimaginative “first, second, third” problem:

There is, at the outset, reason to be skeptical of the Service’s position. First, the few cases . . . .

Second, although the text meanders a bit . . . .

Third, the use of the “may” certainly confers discretion . . . .

Fourth, Section 4(b)(2) requires the Secretary to consider . . . .

While I don’t love the outcome from an animal law perspective, the opinion is interesting and the reasoning well-explained. There’s still hope for the dusky gopher frog, though—the Court remanded the case and directed CA5 to consider questions it did not answer regarding the definition of “habitat.” And even though the Court found the Service’s decision reviewable, that decision is subject to the permissive abuse of discretion standard.

*Avoid “firstly, secondly, thirdly” at all costs.