How Powerful is the Endangered Species Act? Just Ask the Delta Smelt

Foley Hoag LLP - Environmental Law

The Endangered Species Act is a powerful tool for the protection of threatened and endangered species and their habitats.  Just how powerful was made clear last week when the 9th Circuit Court of Appeals largely reversed a trial court opinion and essentially sustained actions taken by the Fish and Wildlife Service to protect the delta smelt.  Delta SmeltThe “reasonable and prudent alternatives” identified in the Biological Opinion issued by the FWS will result in substantially less water being exported from northern California to southern California.

The decision is massive (153 pages, including the 13-page caption, but not including partial concurrences and partials dissents by both other panel members).  I’m not going to try to summarize it here, but will note the three highlights.

The first is the basic point about the reach of the ESA.  As the Court stated, in what is likely to be a vain effort to insulate itself from criticism of the impact of its decision:

We are acutely aware of the consequences of this proceeding. As a court, however, we are limited in our review of matters within the expertise of an agency.


We recognize the enormous practical implications of this decision. But the consequences were prescribed when Congress determined that “these species of fish, wildlife, and plants are of esthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people.” …  [Endangered and threatened] species have been “afforded the highest of priorities,” by Congress, even if it means “the sacrifice of the anticipated benefits of the project and of many millions of dollars in public funds.” Id. at 174 (footnote omitted). The law prohibits us from making “such fine utilitarian calculations” to balance the smelt’s interests against the interests of the citizens of California.

In short, it’s important to remember that judicial restraint implies significant deference to Congress and, by extension, administrative agencies implementing the words Congress has actually written.  Which brings me to the next two important take-aways from the decision.

  • Record review means record review.  The Court rebuked the District Court for having allowed both sides to submit extensive expert opinions, largely rendering the APA requirement to limit judicial review to the administrative record meaningless.
  • Judicial deference to agency expertise means judicial deference to agency expertise.  As the Court noted:

the BiOp is a bit of a mess. And not just a little bit of a mess, but, at more than 400 pages, a big bit of a mess. And the FWS knew it.

Nonetheless, the Court found that the BiOp was not arbitrary and capricious.  First, it noted the irony inherent in a decision by the District Court that the BiOp was arbitrary and capricious, when the sloppy nature of the BiOp largely stemmed from a District Court order requiring that the BiOp be issued on a very tight schedule.  Next, the court emphasized that judicial deference to agency decisions “is at its greatest” when the agency is applying its expertise to difficult scientific questions.

In short, a good day for the delta smelt.  I wonder what Jack Nicholson would have made of it all.



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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