Neomi Rao, head of the White House Office of Information and Regulatory Affairs, noted in a December op-ed that "in the previous administration, agencies frequently exceeded their legal authority when imposing costly rules [and that s]ome agencies announced important policy changes without following the formal rule-making process."
That will end, she said, because the Trump administration is committed "to a regulatory policy that actually works."
The OIRA regulator-watchers could start by coming down hard on the U.S. Fish and Wildlife Service for a bizarre decision that not only doesn't work but also diminishes the rights of landowners. Known on the federal court dockets as Weyerhaeuser v. United States Fish and Wildlife Service, the Supreme Court will decide on Friday whether to hear the case.
In this amphibian equivalent of a shaggy-dog story, the government is trying to seize control of land it does not own in order to protect an endangered species of frog that does not live there. In order to comply, it would force the private landowners to tear down a healthy native forest, and to install at landowner expense a new forest that the landowner does not want.
The dusky gopher frog, which is about the size of a garage-door-opener remote, was known as the Mississippi gopher frog (after its home state) until 2012, when the Fish and Wildlife Service changed its name as part of a push to take control of land in Louisiana to protect it. Some of these frogs had once resided in Louisiana, but not, apparently, since 1965. The reason is that the land in question became inherently unsuitable for sustaining the frog, which needs three elements to survive:
- Ephemeral ponds (depressions in the ground that hold water for a period of time following snowmelt and spring rains but typically dry out by mid-summer) for breeding,
- Open canopy forest close to the ponds that is maintained by frequent fires, and
- Upland habitat with abundant native herbaceous groundcover.
Of these three, the Louisiana land in question has only the ponds to offer the frog. Instead of open canopy forest, the land is populated with what the FWS described as plantations of closed-canopy loblolly pines. Moreover, it lacks suitable upland habitat for the frog to live. Thus, with the wrong trees and the wrong ground cover, it's not surprising that the frog does not, in fact, live there.
That doesn't matter to FWS, which is aggressively trying to designate as critical habitat areas that have not been occupied by the frog species for at least half a century. As the case has worked its way through the court system, FWS changed its regulations in early 2016 to say explicitly, in terms worthy of the "Newspeak" in George Orwell's 1984, that "unoccupied areas do not have to presently contain any of the physical or biological features" that are essential to the species' survival.
None of these contortions by the feds was necessary. As NOAA, another federal agency that administers the Endangered Species Act, points out on its website, "Critical habitat is defined as specific areas . . . outside the geographical area occupied by the species if the agency determines that the area itself is essential for conservation" (emphasis added). In other words, FWS has tortured logic to conclude that a specific plot of land in Louisiana is essential for conservation, in spite of the land in Louisiana lacking two of the three elements necessary for the dusky gopher frog to survive there, and the fact that the frog breeds and lives in two sites in Mississippi.
As one of the petitioners to the Supreme Court, the Weyerhaeuser Company, described in a recent brief, in order to achieve actual habitability for the frog, the FWS is telling owners of this "critical habitat" that they must take several draconian actions. These would include chopping down their closed-canopy loblolly pines and replacing them with open-canopied longleaf pines; burning the new forest with "frequent fires" to "support a diverse ground cover of herbaceous plants," in spite of acknowledged "landowner concern" and "negative impacts" of such fires; terminating "on-going timber management of the site, which precludes burning or planting longleaf pine trees"; allowing most or all of the land to be "managed" as refuge for the frog at a cost of tens of millions of dollars in lost development value; and agreeing to "frog translocations."
OIRA Administrator Rao, take notice: The FWS has also said that it anticipates making more designations of "critical habitat" in the future outside areas occupied by a relevant species. In practical terms, this means that, if the courts uphold the actions of the FWS and Trump administration officials fail to rein in regulators, the agency could pick any plot of private land anywhere in the U.S., designate it a "critical habitat" regardless of whether an endangered species actually lives there, and then dictate to the landowner exactly how the land is to be used.
With more than 1,650 species listed as endangered and listings in all 50 states and the District of Columbia, almost any private land could end up as a "critical habitat." Consider that scientists are actively working to resurrect the woolly mammoth, an ancient relative of the Asian elephant that has been extinct for 4,000 years, and which ranged across most of North America. Under the FWS's interpretation of the Endangered Species Act, much of the continental U.S. could be considered the wooly mammoth's past "critical habitat."
But here's the problem for the FWS' plan: The statute has a clear and unambiguous habitability requirement – that is, as a matter of law, a species has to be able to live there for land to be designated as critical habitat. It is a line of argument that the justices are likely to find compelling. As liberal Justice Elena Kagan said shortly after her elevation to the Court, "We are all textualists now," by which she meant that the actual words of a statute matter. Conservative justice Neil Gorsuch echoed that view when he recently schooled an attorney during oral arguments, "We don't follow what [lawmakers are] trying to do. We follow what they do."
That is a lesson that other Executive Branch bureaucrats also have yet to learn. The Supreme Court should take up the endangered frog case and hold the FWS to the clear language of the Endangered Species Act.
Going forward, OIRA and the Trump administration's senior regulators, including Greg Sheehan, who started as the acting head of FWS in June, should undo the rulemaking that has produced overreaching and destructive regulation. And after this case is resolved, federal regulators who needlessly precipitated it should find their own professional habitat endangered.
Henry Miller, a physician and molecular biologist, is the Robert Wesson Fellow in Scientific Philosophy and Public Policy at Stanford University's Hoover Institution.