As reported in this space, in November 2018, the U.S. Supreme Court remanded to the Court of Appeals for the 5th Circuit a determination by the U.S. Fish & Wildlife Service on critical habitat for the dusky gopher frog. The issues for the 5th Circuit on remand would be whether habitat in which the dusky gopher frog could not currently live without modification could be designated “critical habitat” under the Endangered Species Act, and consideration of the cost implications of the critical habitat designation for the private landowner.

The FWS is now requesting that the 5th Circuit remand the matter back to the agency and allow it to reexamine the issues itself. The agency reasoned that it could more quickly handle the matter, citing new information developed since the 2012 record before the Supreme Court. FWS is also considering an amended regulation regarding the designation of critical habitat. Remand would allow the policy considerations inherent in the new regulation to be taken into account first by the agency.

What is the motivation for the agency’s request? It could be as straightforward as stated. The agency has the responsibility to make the designation. It has additional and unanticipated guidance on how to approach designations from the Supreme Court’s decision. And the 5th Circuit, if it now applied that decision on remand, would do it on the basis of a stale factual record, without the benefit of the agency’s new analysis and new regulations. Underlying that analysis, what will be the impact of Supreme Court rulings expected this year or next on Chevron deference? Should the agency be allowed to bulk up support for its position in anticipation of a less deferential standard of review? Or could this agency effort be an attempt to kick this matter down the road for two years or more for later consideration by a new administration not hampered by a 5th Circuit ruling made this year?

The avalanche of litigation challenging Trump Administration environmental actions since 2016 may have made cynics of us all. Is this an agency effort to avoid embarrassment in defending a decision made years earlier that relied on strong deference in review of a weak record, or a Deep State effort to thwart a change of direction in policy? The plaintiffs object to the FWS request, which suggests their view. From outside the litigation, I remain conflicted.