Weyerhaeuser Co. v. United States Fish and Wildlife Serv. ( 2018 )

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
WEYERHAEUSER CO. v. UNITED STATES FISH AND
WILDLIFE SERVICE ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 17–71. Argued October 1, 2018—Decided November 27, 2018
The Fish and Wildlife Service administers the Endangered Species Act
of 1973 on behalf of the Secretary of the Interior. In 2001, the Ser-
vice listed the dusky gopher frog as an endangered species. See 16
U.S. C. §1533(a)(1). That required the Service to designate “critical
habitat” for the frog. The Service proposed designating as part of
that critical habitat a site in St. Tammany Parish, Louisiana, which
the Service dubbed “Unit 1.” The frog had once lived in Unit 1, but
the land had long been used as a commercial timber plantation, and
no frogs had been spotted there for decades. The Service concluded
that Unit 1 met the statutory definition of unoccupied critical habitat
because its rare, high-quality breeding ponds and distance from exist-
ing frog populations made it essential for the species’ conservation.
§1532(5)(A)(ii). The Service then commissioned a report on the prob-
able economic impact of its proposed critical-habitat designation.
§1533(b)(2). With regard to Unit 1, the report found that designation
might bar future development of the site, depriving the owners of up
to $33.9 million. The Service nonetheless concluded that the poten-
tial costs were not disproportionate to the conservation benefits and
proceeded to designate Unit 1 as critical habitat for the dusky gopher
frog.
Unit 1 is owned by petitioner Weyerhaeuser and a group of family
landowners. The owners of Unit 1 sued, contending that the closed-
canopy timber plantation on Unit 1 could not be critical habitat for
the dusky gopher frog, which lives in open-canopy forests. The Dis-
trict Court upheld the designation. The landowners also challenged
the Service’s decision not to exclude Unit 1 from the frog’s critical
habitat, arguing that the Service had failed to adequately weigh the
2 WEYERHAEUSER CO. v. UNITED STATES FISH AND
WILDLIFE SERV.
Syllabus
benefits of designating Unit 1 against the economic impact, had used
an unreasonable methodology for estimating economic impact, and
had failed to consider several categories of costs. The District Court
approved the Service’s methodology and declined to consider the chal-
lenge to the Service’s decision not to exclude Unit 1. The Fifth Cir-
cuit affirmed, rejecting the suggestion that the “critical habitat” defi-
nition contains any habitability requirement and concluding that the
Service’s decision not to exclude Unit 1 was committed to agency dis-
cretion by law and was therefore unreviewable.
Held:
1. An area is eligible for designation as critical habitat under
§1533(a)(3)(A)(i) only if it is habitat for the species. That provision,
the sole source of authority for critical-habit designations, states that
when the Secretary lists a species as endangered he must also “des-
ignate any habitat of such species which is then considered to be crit-
ical habitat.” It does not authorize the Secretary to designate the
area as critical habitat unless it is also habitat for the species. The
definition allows the Secretary to identify a subset of habitat that is
critical, but leaves the larger category of habitat undefined. The Ser-
vice does not now dispute that critical habitat must be habitat, but
argues that habitat can include areas that, like Unit 1, would require
some degree of modification to support a sustainable population of a
given species. Weyerhaeuser urges that habitat cannot include areas
where the species could not currently survive. The Service, in turn,
disputes the premise that the administrative record shows that the
frog could not survive in Unit 1. The Court of Appeals, which had no
occasion to interpret the term “habitat” in §1533(a)(3)(A)(i) or to as-
sess the Service’s administrative findings regarding Unit 1, should
address these questions in the first instance. Pp. 8–10.
2. The Secretary’s decision not to exclude an area from critical hab-
itat under §1533(b)(2) is subject to judicial review. The Administra-
tive Procedure Act creates a “basic presumption of judicial review” of
agency action. Abbott Laboratories v. Gardner, 387 U.S. 136, 140.
The Service contends that the presumption is rebutted here because
the action is “committed to agency discretion by law,” 5 U.S. C.
§701(a)(2), because §1533(b)(2) is one of those rare provisions “drawn
so that a court would have no meaningful standard against which to
judge the agency’s exercise of discretion,” Lincoln v. Vigil, 508 U.S.
182, 191.
Section 1533(b)(2) describes a unified process for weighing the im-
pact of designating an area as critical habitat. The provision’s first
sentence requires the Secretary to “tak[e] into consideration” econom-
ic and other impacts before designation, and the second sentence au-
thorizes the Secretary to act on his consideration by providing that he
Cite as: 586 U. S. ____ (2018) 3
Syllabus
“may exclude any area from critical habitat if he determines that the
benefits of such exclusion outweigh the benefits of ” designation. The
word “may” certainly confers discretion on the Secretary, but it does
not segregate his discretionary decision not to exclude from the man-
dated procedure to consider the economic and other impacts of desig-
nation when making his exclusion decisions. The statute is, there-
fore, not “drawn so that a court would have no meaningful standard
against which to judge the [Secretary’s] exercise of [his] discretion”
not to exclude. Lincoln, 508 U.S., at 191. Weyerhaeuser’s claim—
that the agency did not appropriately consider all the relevant statu-
tory factors meant to guide the agency in the exercise of its discre-
tion—is the sort of claim that federal courts routinely assess when
determining whether to set aside an agency decision as an abuse of
discretion. The Court of Appeals should consider in the first instance
the question whether the Service’s assessment of the costs and bene-
fits of designation and resulting decision not to exclude Unit 1 was
arbitrary, capricious, or an abuse of discretion. Pp. 10–15.
827 F.3d 452, vacated and remanded.
ROBERTS, C. J., delivered the opinion of the Court, in which all other
Members joined, except KAVANAUGH, J., who took no part in the consid-
eration or decision of the case.
Cite as: 586 U. S. ____ (2018) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–71
_________________
WEYERHAEUSER COMPANY, PETITIONER v.
UNITED STATES FISH AND WILDLIFE
SERVICE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[November 27, 2018]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The Endangered Species Act directs the Secretary of the
Interior, upon listing a species as endangered, to also
designate the “critical habitat” of the species. A group of
landowners whose property was designated as critical
habitat for an endangered frog challenged the designation.
The landowners urge that their land cannot be critical
habitat because it is not habitat, which they contend refers
only to areas where the frog could currently survive. The
court below ruled that the Act imposed no such limitation
on the scope of critical habitat.
The Act also authorizes the Secretary to exclude an area
that would otherwise be included as critical habitat, if the
benefits of exclusion outweigh the benefits of designation.
The landowners challenged the decision of the Secretary
not to exclude their property, but the court below held that
the Secretary’s action was not subject to judicial review.
We granted certiorari to review both rulings.
2 WEYERHAEUSER CO. v. UNITED STATES FISH AND
WILDLIFE SERV.
Opinion of the Court
I
A
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. Final Rule To List the Mis-
sisippi Gopher Frog Distinct Population Segment of Dusky
Gopher Frog as Endangered, 66 Fed. Reg. 62993 (2001)
(Final Listing). It is noted for covering its eyes with its
front legs when it feels threatened, peeking out periodi-
cally until danger passes. Markle Interests, LLC v. United
States Fish and Wildlife Serv., 827 F.3d 452, 458, n. 2
(CA5 2016). Less endearingly, it also secretes a bitter,
milky substance to deter would-be diners. Brief for
Intervenor-Respondents 6, n. 1.
The frog spends most of its time in burrows and stump
holes located in upland longleaf pine forests. In such
forests, frequent fires help maintain an open canopy,
which in turn allows vegetation to grow on the forest floor.
The vegetation supports the small insects that the frog
eats and provides a place for the frog’s eggs to attach when
it breeds. The frog breeds in “ephemeral” ponds that are
dry for part of the year. Such ponds are safe for tadpoles
because predatory fish cannot live in them. Designation of
Critical Habitat for Dusky Gopher Frog, 77 Fed. Reg.
35129–35131 (2012) (Designation).
The dusky gopher frog once lived throughout coastal
Alabama, Louisiana, and Mississippi, in the longleaf pine
forests that used to cover the southeast. But more than
98% of those forests have been removed to make way for
urban development, agriculture, and timber plantations.
The timber plantations consist of fast-growing loblolly
pines planted as close together as possible, resulting in a
closed-canopy forest inhospitable to the frog. The near
Cite as: 586 U. S. ____ (2018) 3
Opinion of the Court
eradication of the frog’s habitat sent the species into se-
vere decline. By 2001, the known wild population of the
dusky gopher frog had dwindled to a group of 100 at a
single pond in southern Mississippi. That year, the Fish
and Wildlife Service, which administers the Endangered
Species Act of 1973 on behalf of the Secretary of the Inte-
rior, listed the dusky gopher frog as an endangered spe-
cies. Final Listing 62993–62995; see 87 Stat. 886, 16
U.S. C. §1533(a)(1).
B
When the Secretary lists a species as endangered, he
must also designate the critical habitat of that species.
§1533(a)(3)(A)(i). The ESA defines “critical habitat” as:
“(i) the specific areas within the geographical area
occupied by the species . . . on which are found those
physical or biological features (I) essential to the con-
servation of the species and (II) which may require
special management considerations or protection; and
“(ii) specific areas outside the geographical area oc-
cupied by the species . . . upon a determination by the
Secretary that such areas are essential for the conser-
vation of the species.” §1532(5)(A).
Before the Secretary may designate an area as critical
habitat, the ESA requires him to “tak[e] into consideration
the economic impact” and other relevant impacts of the
designation. §1533(b)(2). The statute goes on to authorize
him to “exclude any area from critical habitat if he deter-
mines that the benefits of such exclusion outweigh the
benefits of [designation],” unless exclusion would result in
extinction of the species. Ibid.
A critical-habitat designation does not directly limit the
rights of private landowners. It instead places conditions
on the Federal Government’s authority to effect any physi-
cal changes to the designated area, whether through
4 WEYERHAEUSER CO. v. UNITED STATES FISH AND
WILDLIFE SERV.
Opinion of the Court
activities of its own or by facilitating private development.
Section 7 of the ESA requires all federal agencies to con-
sult with the Secretary to “[e]nsure that any action au-
thorized, funded, or carried out by such agency” is not
likely to adversely affect a listed species’ critical habitat.
16 U.S. C. §1536(a)(2). If the Secretary determines that
an agency action, such as issuing a permit, would harm
critical habitat, then the agency must terminate the ac-
tion, implement an alternative proposed by the Secretary,
or seek an exemption from the Cabinet-level Endangered
Species Committee. See National Assn. of Home Builders
v. Defenders of Wildlife, 551 U.S. 644, 652 (2007); 50 CFR
402.15 (2017).
Due to resource constraints, the Service did not desig-
nate the frog’s critical habitat in 2001, when it listed the
frog as endangered. Designation, at 35118–35119. In the
following years, the Service discovered two additional
naturally occurring populations and established another
population through translocation. The first population
nonetheless remains the only stable one and by far the
largest. Dept. of Interior, U. S. Fish and Wildlife Serv.,
Dusky Gopher Frog (Rana sevosa) Recovery Plan iv, 6–7
(2015).
In 2010, in response to litigation by the Center for Bio-
logical Diversity, the Service published a proposed critical-
habitat designation. Designation, at 35119. The Service
proposed to designate as occupied critical habitat all four
areas with existing dusky gopher frog populations. The
Service found that each of those areas possessed the three
features that the Service considered “essential to the
conservation” of the frog and that required special protec-
tion: ephemeral ponds; upland open-canopy forest contain-
ing the holes and burrows in which the frog could live; and
open-canopy forest connecting the two. But the Service
also determined that designating only those four sites
would not adequately ensure the frog’s conservation.
Cite as: 586 U. S. ____ (2018) 5
Opinion of the Court
Because the existing dusky gopher frog populations were
all located in two adjacent counties on the Gulf Coast of
Mississippi, local events such as extreme weather or an
outbreak of an infectious disease could jeopardize the
entire species. Designation of Critical Habitat for Missis-
sippi Gopher Frog, 75 Fed. Reg. 31394 (2010) (proposed 50
CFR Part 17).
To protect against that risk, the Service proposed to
designate as unoccupied critical habitat a 1,544-acre site
in St. Tammany Parish, Louisiana. The site, dubbed
“Unit 1” by the Service, had been home to the last known
population of dusky gopher frogs outside of Mississippi.
The frog had not been seen in Unit 1 since 1965, and a
closed-canopy timber plantation occupied much of the site.
But the Service found that the site retained five ephem-
eral ponds “of remarkable quality,” and determined that an
open-canopy forest could be restored on the surrounding
uplands “with reasonable effort.” Although the uplands
in Unit 1 lacked the open-canopy forests (and, of course,
the frogs) necessary for designation as occupied critical
habitat, the Service concluded that the site met the statu-
tory definition of unoccupied critical habitat because its
rare, high-quality breeding ponds and its distance from
existing frog populations made it essential for the conser-
vation of the species. Designation, at 35118, 35124,
35133, 35135.
After issuing its proposal, the Service commissioned a
report on the probable economic impact of designating
each area, including Unit 1, as critical habitat for the
dusky gopher frog. See 16 U.S. C. §1533(b)(2); App. 63.
Petitioner Weyerhaeuser Company, a timber company,
owns part of Unit 1 and leases the remainder from a group
of family landowners. Brief for Petitioner 16. While the
critical-habitat designation has no direct effect on the
timber operations, St. Tammany Parish is a fast-growing
part of the New Orleans metropolitan area, and the land-
6 WEYERHAEUSER CO. v. UNITED STATES FISH AND
WILDLIFE SERV.
Opinion of the Court
owners have already invested in plans to more profitably
develop the site. App. 80–83. The report recognized that
anyone developing the area may need to obtain Clean
Water Act permits from the Army Corps of Engineers
before filling any wetlands on Unit 1. 33 U.S. C. §1344(a).
Because Unit 1 is designated as critical habitat, Section 7
of the ESA would require the Corps to consult with the
Service before issuing any permits.
According to the report, that consultation process could
result in one of three outcomes. First, it could turn out
that the wetlands in Unit 1 are not subject to the Clean
Water Act permitting requirements, in which case the
landowners could proceed with their plans unimpeded.
Second, the Service could ask the Corps not to issue per-
mits to the landowners to fill some of the wetlands on the
site, in effect prohibiting development on 60% of Unit 1.
The report estimated that this would deprive the owners
of $20.4 million in development value. Third, by asking
the Corps to deny even more of the permit requests, the
Service could bar all development of Unit 1, costing the
owners $33.9 million. The Service concluded that those
potential costs were not “disproportionate” to the conser-
vation benefits of designation. “Consequently,” the Ser-
vice announced, it would not “exercis[e] [its] discretion to
exclude” Unit 1 from the dusky gopher frog’s critical habi-
tat. App. 188–190.
C
Weyerhaeuser and the family landowners sought to
vacate the designation in Federal District Court. They
contended that Unit 1 could not be critical habitat for the
dusky gopher frog because the frog could not survive
there: Survival would require replacing the closed-canopy
timber plantation encircling the ponds with an open-
canopy longleaf pine forest. The District Court nonethe-
less upheld the designation. Markle Interests, LLC v.
Cite as: 586 U. S. ____ (2018) 7
Opinion of the Court
United States Fish and Wildlife Serv., 40 F. Supp. 3d 744
(ED La. 2014). The court determined that Unit 1 satisfied
the statutory definition of unoccupied critical habitat,
which requires only that the Service deem the land “essen-
tial for the conservation [of] the species.” Id., at 760.
Weyerhaeuser also challenged the Service’s decision not
to exclude Unit 1 from the dusky gopher frog’s critical
habitat, arguing that the Service had failed to adequately
weigh the benefits of designating Unit 1 against the eco-
nomic impact. In addition, Weyerhaeuser argued that the
Service had used an unreasonable methodology for esti-
mating economic impact and, regardless of methodology,
had failed to consider several categories of costs. Id.,
at 759. The court approved the Service’s methodology
and declined to consider Weyerhaeuser’s challenge to
the decision not to exclude. See id., at 763–767, and n. 29.
The Fifth Circuit affirmed. 827 F.3d 452. The Court of
Appeals rejected the suggestion that the definition of
critical habitat contains any “habitability requirement.”
Id., at 468. The court also concluded that the Service’s
decision not to exclude Unit 1 was committed to agency
discretion by law and was therefore unreviewable. Id., at
473–475. Judge Owen dissented. She wrote that Unit 1
could not be “essential for the conservation of the species”
because it lacked the open-canopy forest that the Service
itself had determined was “essential to the conservation”
of the frog. Id., at 480–481.
The Fifth Circuit denied rehearing en banc. Markle
Interests, LLC v. United States Fish and Wildlife Serv.,
848 F.3d 635 (2017). Judge Jones dissented, joined by
Judges Jolly, Smith, Clement, Owen, and Elrod. They
reasoned that critical habitat must first be habitat, and
Unit 1 in its present state could not be habitat for the
dusky gopher frog. Id., at 641. The dissenting judges also
concluded that the Service’s decision not to exclude Unit 1
was reviewable for abuse of discretion. Id., at 654, and
8 WEYERHAEUSER CO. v. UNITED STATES FISH AND
WILDLIFE SERV.
Opinion of the Court
n. 21.
We granted certiorari to consider two questions: (1)
whether “critical habitat” under the ESA must also be
habitat; and (2) whether a federal court may review an
agency decision not to exclude a certain area from critical
habitat because of the economic impact of such a designa-
tion. 583 U. S. ___ (2018).1
II
A
Our analysis starts with the phrase “critical habitat.”
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 habi-
tat” is the subset of “habitat” that is “critical” to the con-
servation of an endangered species.
Of course, “[s]tatutory language cannot be construed in
a vacuum,” Sturgeon v. Frost, 577 U. S. ___, ___ (2016)
(slip op., at 12) (internal quotation marks omitted), and so
we must also consider “critical habitat” in its statutory
context. Section 4(a)(3)(A)(i), which the lower courts did
not analyze, is the sole source of authority for critical-
habitat designations. That provision states that when the
Secretary lists a species as endangered he must also “des-
ignate any habitat of such species which is then considered
to be critical habitat.” 16 U.S. C. §1533(a)(3)(A)(i) (em-
——————
1 Intervenor Center for Biological Diversity raises an additional ques-
tion in its brief, arguing that Weyerhaeuser lacks standing to challenge
the critical-habitat designation because it has not suffered an injury in
fact. We agree with the lower courts that the decrease in the market
value of Weyerhaeuser’s land as a result of the designation is a suffi-
ciently concrete injury for Article III purposes. See Village of Euclid v.
Ambler Realty Co., 272 U.S. 365, 386 (1926) (holding that a zoning
ordinance that “greatly . . . reduce[d] the value of appellee’s lands and
destroy[ed] their marketability for industrial, commercial and residen-
tial uses” constituted a “present invasion of appellee’s property rights”).
Cite as: 586 U. S. ____ (2018) 9
Opinion of the Court
phasis added). Only the “habitat” of the endangered
species is eligible for designation as critical habitat. Even
if an area otherwise meets the statutory definition of
unoccupied critical habitat because the Secretary finds the
area essential for the conservation of the species, Section
4(a)(3)(A)(i) does not authorize the Secretary to designate
the area as critical habitat unless it is also habitat for the
species.
The Center for Biological Diversity contends that the
statutory definition of critical habitat is complete in itself
and does not require any independent inquiry into the
meaning of the term “habitat,” which the statute leaves
undefined. Brief for Intervenor-Respondents 43–49. But
the statutory definition of “critical habitat” tells us what
makes habitat “critical,” not what makes it “habitat.”
Under the statutory definition, critical habitat comprises
areas occupied by the species “on which are found those
physical or biological features (I) essential to the conserva-
tion of the species and (II) which may require special
management considerations or protection,” as well as
unoccupied areas that the Secretary determines to be
“essential for the conservation of the species.” 16 U.S. C.
§1532(5)(A). That is no baseline definition of habitat—it
identifies only certain areas that are indispensable to the
conservation of the endangered species. The definition
allows the Secretary to identify the subset of habitat that
is critical, but leaves the larger category of habitat
undefined.
The Service does not now dispute that critical habitat
must be habitat, see Brief for Federal Respondents 23,
although it made no such concession below. Instead, the
Service argues that habitat includes areas that, like Unit
1, would require some degree of modification to support a
sustainable population of a given species. Id., at 27.
Weyerhaeuser, for its part, urges that habitat cannot
include areas where the species could not currently sur-
10 WEYERHAEUSER CO. v. UNITED STATES FISH AND
WILDLIFE SERV.
Opinion of the Court
vive. Brief for Petitioner 25. (Habitat can, of course,
include areas where the species does not currently live,
given that the statute defines critical habitat to include
unoccupied areas.) The Service in turn disputes Weyer-
haeuser’s premise that the administrative record shows
that the frog could not survive in Unit 1. Brief for Federal
Respondents 22, n. 4.
The Court of Appeals concluded that “critical habitat”
designations under the statute were not limited to areas
that qualified as habitat. See 827 F.3d, at 468 (“There is
no habitability requirement in the text of the ESA or the
implementing regulations.”). The court therefore had no
occasion to interpret the term “habitat” in Section
4(a)(3)(A)(i) or to assess the Service’s administrative find-
ings regarding Unit 1. Accordingly, we vacate the judg-
ment below and remand to the Court of Appeals to con-
sider these questions in the first instance.2
B
Weyerhaeuser also contends that, even if Unit 1 could
be properly classified as critical habitat for the dusky
gopher frog, the Service should have excluded it from
designation under Section 4(b)(2) of the ESA. That provi-
sion requires the Secretary to “tak[e] into consideration
the economic impact . . . of specifying any particular area
as critical habitat” and authorizes him to “exclude any
area from critical habitat if he determines that the bene-
fits of such exclusion outweigh the benefits of specifying
such area as part of the critical habitat.” 16 U.S. C.
——————
2 Because we hold that an area is eligible for designation as critical
habitat under Section 4(a)(3)(A)(i) only if it is habitat for the species, it
is not necessary to consider the landowners’ argument that land cannot
be “essential for the conservation of the species,” and thus cannot
satisfy the statutory definition of unoccupied critical habitat, if it is not
habitat for the species. See Brief for Petitioner 27–28; Brief for Re-
spondent Markle Interests, LLC, et al. in Support of Petitioner 28–31.
Cite as: 586 U. S. ____ (2018) 11
Opinion of the Court
§1533(b)(2). To satisfy its obligation to consider economic
impact, the Service commissioned a report estimating the
costs of its proposed critical-habitat designation. The
Service concluded that the costs of designating the pro-
posed areas, including Unit 1, were not “disproportionate”
to the conservation benefits and, “[c]onsequently,” declined
to make any exclusions.
Weyerhaeuser claims that the Service’s conclusion
rested on a faulty assessment of the costs and benefits of
designation and that the resulting decision not to exclude
should be set aside. Specifically, Weyerhaeuser contends
that the Service improperly weighed the costs of designat-
ing Unit 1 against the benefits of designating all proposed
critical habitat, rather than the benefits of designating
Unit 1 in particular. Weyerhaeuser also argues that the
Service did not fully account for the economic impact of
designating Unit 1 because it ignored, among other things,
the costs of replacing timber trees with longleaf pines,
maintaining an open canopy through controlled burning,
and the tax revenue that St. Tammany Parish would lose
if Unit 1 were never developed. Brief for Petitioner 53–54.
The Court of Appeals did not consider Weyerhaeuser’s
claim because it concluded that a decision not to exclude a
certain area from critical habitat is unreviewable.
The Administrative Procedure Act creates a “basic
presumption of judicial review [for] one ‘suffering legal
wrong because of agency action.’ ” Abbott Laboratories v.
Gardner, 387 U.S. 136, 140 (1967) (quoting 5 U.S. C.
§702). As we explained recently, “legal lapses and viola-
tions occur, and especially so when they have no conse-
quence. That is why this Court has so long applied a
strong presumption favoring judicial review of administra-
tive action.” Mach Mining, LLC v. EEOC, 575 U. S. ___,
___–___ (2015) (slip op., at 7–8). The presumption may be
rebutted only if the relevant statute precludes review, 5
U.S. C. §701(a)(1), or if the action is “committed to agency
12 WEYERHAEUSER CO. v. UNITED STATES FISH AND
WILDLIFE SERV.
Opinion of the Court
discretion by law,” §701(a)(2). The Service contends, and
the lower courts agreed, that Section 4(b)(2) of the ESA
commits to the Secretary’s discretion decisions not to
exclude an area from critical habitat.
This Court has noted the “tension” between the prohibi-
tion of judicial review for actions “committed to agency
discretion” and the command in §706(2)(A) that courts set
aside any agency action that is “arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with
law.” Heckler v. Chaney, 470 U.S. 821, 829 (1985). A
court could never determine that an agency abused its
discretion if all matters committed to agency discretion
were unreviewable. To give effect to §706(2)(A) and to
honor the presumption of review, we have read the excep-
tion in §701(a)(2) quite narrowly, restricting it to “those
rare circumstances where the relevant statute is drawn so
that a court would have no meaningful standard against
which to judge the agency’s exercise of discretion.” Lin-
coln v. Vigil, 508 U.S. 182, 191 (1993). The Service con-
tends that Section 4(b)(2) of the ESA is one of those rare
statutory provisions.
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, such
as the allocation of funds from a lump-sum appropriation,
Lincoln, 508 U.S., at 191, or a decision not to reconsider a
final action, ICC v. Locomotive Engineers, 482 U.S. 270,
282 (1987). By contrast, this case involves the sort of
routine dispute that federal courts regularly review: An
agency issues an order affecting the rights of a private
party, and the private party objects that the agency did
not properly justify its determination under a standard set
forth in the statute.
Section 4(b)(2) states that the Secretary
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Opinion of the Court
“shall designate critical habitat . . . after taking into
consideration the economic impact, the impact on na-
tional security, and any other relevant impact, of spec-
ifying any particular area as critical habitat. The
Secretary may exclude any area from critical habitat
if he determines that the benefits of such exclusion
outweigh the benefits of specifying such area . . . un-
less he determines . . . that the failure to designate
such area as critical habitat will result in the extinc-
tion of the species concerned.” 16 U.S. C. §1533(b)(2).
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 first sentence
of Section 4(b)(2) imposes a “categorical requirement” that
the Secretary “tak[e] into consideration” economic and
other impacts before such a designation. Id., at 172 (em-
phasis deleted). The second sentence authorizes the Sec-
retary to act on his consideration by providing that he may
exclude an area from critical habitat if he determines that
the benefits of exclusion outweigh the benefits of designa-
tion. The Service followed that procedure here (albeit in a
flawed manner, according to Weyerhaeuser). It commis-
sioned a report to estimate the costs of designating the
proposed critical habitat, concluded that those costs were
not “disproportionate” to the benefits of designation, and
“[c]onsequently” declined to “exercis[e] [its] discretion to
exclude any areas from [the] designation of critical habi-
tat.” App. 190.
Bennett explained that the Secretary’s “ultimate deci-
sion” to designate or exclude, which he “arriv[es] at” after
considering economic and other impacts, is reviewable “for
abuse of discretion.” 520 U.S., at 172. The Service dis-
misses that language as a “passing reference . . . not nec-
essarily inconsistent with the Service’s understanding,”
14 WEYERHAEUSER CO. v. UNITED STATES FISH AND
WILDLIFE SERV.
Opinion of the Court
which is that the Secretary’s decision not to exclude an
area is wholly discretionary and therefore unreviewable.
Brief for Federal Respondents 50. The Service bases its
understanding on the second sentence of Section 4(b)(2),
which states that the Secretary “may exclude [an] area
from critical habitat if he determines that the benefits of
such exclusion outweigh the benefits of [designation].”
The use of the word “may” certainly confers discretion
on the Secretary. That does not, however, segregate his
discretionary decision not to exclude from the procedure
mandated by Section 4(b)(2), which directs the Secretary
to consider the economic and other impacts of designation
when making his exclusion decisions. Weyerhaeuser’s
claim is the familiar one in administrative law that the
agency did not appropriately consider all of the relevant
factors that the statute sets forth to guide the agency in
the exercise of its discretion. Specifically, Weyerhaeuser
contends that the Service ignored some costs and conflated
the benefits of designating Unit 1 with the benefits of
designating all of the proposed critical habitat. This is the
sort of claim that federal courts routinely assess when
determining whether to set aside an agency decision as an
abuse of discretion under §706(2)(A). See Judulang v.
Holder, 565 U.S. 42, 53 (2011) (“When reviewing an agency
action, we must assess . . . whether the decision was based
on a consideration of the relevant factors and whether
there has been a clear error of judgment.” (internal quota-
tion marks omitted)).
Section 4(b)(2) requires the Secretary to consider eco-
nomic impact and relative benefits before deciding whether
to exclude an area from critical habitat or to proceed
with designation. The statute is, therefore, not “drawn so
that a court would have no meaningful standard against
which to judge the [Secretary’s] exercise of [his] discretion”
not to exclude. Lincoln, 508 U.S., at 191.
Because it determined that the Service’s decisions not to
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Opinion of the Court
exclude were committed to agency discretion and therefore
unreviewable, the Court of Appeals did not consider
whether the Service’s assessment of the costs and benefits
of designation was flawed in a way that rendered the
resulting decision not to exclude Unit 1 arbitrary, capri-
cious, or an abuse of discretion. Accordingly, we remand
to the Court of Appeals to consider that question, if neces-
sary, in the first instance.
* * *
The judgment of the Court of Appeals for the Fifth
Circuit is vacated, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.
JUSTICE KAVANAUGH took no part in the consideration
or decision of this case.