In Weyerhaeuser v U.S Fish and Wildlife Service, 2018 WL 6174253 (November 27, 2018) the Supreme Court addressed the tension between the presumption that agency decisions are subject to judicial review and the exclusion from review for actions that are given over to the discretion of an agency. At issue was the agency’s designation of certain land as “critical habitat” for the dusky gopher frog. The statute at issue said the agency “may . . .if he determines that the benefits. . . .”. The court noted that the word “may” implies that the agency has discretion, but the next phrase “determines that the benefits . . . “ suggests a standard that must be met and should therefore be reviewable.
A group of landowners challenged the designation of certain of their land as “critical habitat” for the dusky gopher frog and the court below held the designation was not subject to judicial review. Of particular interest and perhaps a reason to allow the challenge to proceed, was the fact that the area designated was not only not currently a habitat for the frog, but the frog could not survive there without modifications. Thus, the challengers argued that the area could not be a “critical” habitat for the frog because it was not and could not be a habitat for the frog.
In addressing the reviewability issue, the Court noted that the statute lists the factors that the agency must examine to make its determination and that gives the reviewing court criteria on which to base its review. Reasoning that Congress would not require the agency to examine specific factors without allowing for judicial review to determine whether those factors had been appropriately examined, the Court held that the determination was subject to review. The Court sent the case back to the Court of Appeals to determine whether the agency assessment of those factors was arbitrary and capricious.
It is difficult to convince a court to overturn agency action because the standard of review is “arbitrary and capricious.” One of the accepted means of convincing a court that agency action was “arbitrary and capricious” is a procedural attack — the argument that the agency did not examine the factors that the statute required it to examine. Here the Court allowed such a challenge to proceed even where there was language in the statute suggesting that the agency action could not be challenged.