Related Practices

Advisory Sign Up


receive insight on

legal developments

from Troutman Sanders.

News & Knowledge

High Court Unlikely To Solve ESA Issues In Frog Habitat Case


Angela Levin

Andrea W. Wortzel

Partners Angela Levin and Andrea Wortzel are published in Law360 for their byline titled, “High Court Unlikely To Solve ESA Issues In Frog Habitat Case.” They write, “The U.S. Supreme Court kicked off its new term on Oct. 1 with oral arguments in Weyerhaeuser Co. v. U.S. Fish and Wildlife Service. The case centers around whether and when the U.S. Fish and Wildlife Service can designate land unoccupied by a threatened or endangered species as critical habitat for that species under the Endangered Species Act.” The pair explore recent developments, predicting a likely 4-4 split in the high court. They write, “While justices’ statements at oral argument are not always a good predictor of a case’s outcome, the absence of a ninth justice on the court is likely to weigh heavily on the result for this case, as it seems primed for a 4-4 split between the more liberal and the more conservative justices. The 4-4 division in this case highlights the critical role that Justice Brett Kavanaugh is likely to play in supporting the conservative approach to resolving such issues in future cases. For this case, though, the likely 4-4 split would leave in place the Fifth Circuit’s ruling, which deferred to the FWS’ interpretation of the term ‘essential’ as allowing the FWS to designate an area as critical habitat without being currently habitable. Moreover, a 4-4 split would create uncertainty for the FWS’ recently proposed revisions to the implementing regulations for designation of critical habitat, for which the comment period closed on Sept. 24.”