Will 2018 Be the Year of the Bird? If So, Not Necessarily a Good One
Richard Lazarus - Harvard University
Harvard University
Current Issue
Richard Lazarus

The National Geographic Society has declared 2018 the Year of the Bird, in honor of the 100th anniversary of the Migratory Bird Treaty Act. Even so, as underscored by two recent Ninth Circuit rulings and a major Interior Department policy reversal, the MBTA’s precise meaning and reach remain very much a live issue as the act begins its second century.

In Turtle Island Restoration Network v. Department of Commerce, the Ninth Circuit in late December agreed with environmental plaintiffs that the Fish and Wildlife Service violated the MBTA by issuing a permit authorizing a swordfish fishery to incidentally kill migratory birds by using “longlines,” which accidentally ensnare birds with their hundreds of baited hooks. Under FWS regulations, the interior secretary can permit a taking of a migratory bird for “special purpose activities” that benefit “the migratory bird resource,” “research,” “individual birds,” or another “compelling justification.” The court rejected the government’s contention that this “special purpose” exception could be fairly read to extend to “basic commercial activities like fishing” that did not further the MBTA’s conservation objective.

Environmental plaintiffs, however, fared less well in a second Ninth Circuit MBTA decision, handed down in early January. At issue in Friends of Animals v. Fish and Wildlife Service was whether the MBTA allows the government to permit the take of one species of bird principally to benefit another species. The FWS had permitted the removal of some barred owls because their spread into old growth forest threatened the survival of the endangered northern spotted owl in those same forests. Upholding the permit, the court found no support for the plaintiffs’ theory that the language of the MBTA, its implementing regulations, or the international accords underlying its enactment supported a “same species” limitation.

The most significant development affecting the scope of MBTA enforcement in the courts, however, does not arise from a judicial decision in the first instance. It derives instead from yet another major policy reversal by Interior under the Trump administration. Unless overturned by the courts, the department’s new position would dramatically cut back on the reach of the MBTA’s prohibition on the taking of migratory birds.

For about fifty years, Interior has taken the position that the act bars both direct and incidental takes of migratory birds. The former refers to affirmative, physically injurious actions directed immediately and intentionally against a particular bird. The latter refers to action, lacking such immediacy and intent, such as the longline swordfishing at issue in the Ninth Circuit’s Turtle Island case, that nonetheless injures the species. There are far more incidental takes than direct takes, and the government’s ability to protect migratory birds is dramatically reduced if the act’s bar is limited to direct takings.

Especially because the MBTA imposes criminal penalties for its violation, the government’s contention that the ban extends to incidental takes has long been understandably controversial. And there is a longstanding conflict in the federal circuits on the validity of the government’s view. The Second and Tenth circuits have upheld applications to incidental takes, with some limiting constructions to avoid injustices, and the Fifth, Eighth, and Ninth circuits have questioned that broader reading.

In late December, Interior’s solicitor issued a formal opinion embracing the act’s narrower view. The opinion withdrew the prior solicitor opinion that had reached the diametrically opposed, broader reading in early January 2017, just a few days before the end of the Obama administration. The solicitor newly reasoned that “interpreting the MBTA to apply to incidental or accidental actions hangs the sword of Damocles over a host of otherwise lawful and productive actions, threatening up to six months in jail and a $15,000 penalty for each and every bird injured or killed.”

Looming, moreover, in the background are the possible implications for Interior’s new position for the Endangered Species Act. In 1995, the Supreme Court in Babbitt v. Sweet Home Chapter of Communities for a Greater Oregon, upheld Interior’s view that the ESA’s prohibition on the take of endangered species extends to incidental takes, including habitat modification. Justice Antonin Scalia dissented, arguing that the term “take” was limited to “affirmative acts . . . directed immediately and intentionally against a particular animal.” The solicitor opinion reversing the longstanding expansive view of the MBTA’s take prohibition cites favorably six times to Scalia’s Sweet Home dissent. If the ESA take provision is next on the solicitor’s hit-list, such a reversal would seriously threaten that act’s protections.

In short, 2018 may be the Year of the Bird — but it is far from clear that it will be a good year for birds and endangered species.

Will 2018 be the Year of the Bird? If so, not necessarily a good one.

Justice Gorsuch Faces Case Where Neither Choice Entirely Satisfactory
Richard Lazarus - Harvard University
Harvard University
Current Issue
Richard Lazarus

Before joining the Supreme Court, Neil Gorsuch made clear that he, like the justice he replaced, Antonin Scalia, believes in strict adherence to statutory text. According to Gorsuch, a judge’s personal policy preferences should play no role in statutory interpretation. And, going even further than Scalia, nominee Gorsuch admonished that judicial deference to agency construction of ambiguous statutory language under Chevron v. Natural Resources Defense Council amounts to an unconstitutional violation of separation of powers. An environmental case now pending before the Court on petition for a writ of certiorari, however, may well put Justice Gorsuch’s stated commitment to statutory text to the test.

At issue in the petition pending before the Court in New York vs. EPA is the validity of the agency’s so-called Water Transfer Rule, which provides that a movement from one navigable waterbody to an entirely distinct waterbody does not amount to an “addition of any pollutant to navigable waters” requiring a Clean Water Act Section 402 permit. Under this reading, EPA readily acknowledges, a person can discharge highly polluted water from one water body into a highly pristine separate water body without the need for a Section 402 permit.

EPA statutory grounding for the validity of the WTR is the Clean Water Act’s phrasing of the definition of “discharge of a pollutant” to mean “any addition of any pollutant to navigable waters.” EPA contends that the term “navigable waters” in this context treats all navigable waters in the nation as a “unitary” concept such that conveyances of pollutants from one navigable waterbody to another do not “add” pollutants to navigable waters overall. The pollutants are merely redistributed within the nation’s navigable waters.

The origins of EPA’s unitary waters theory can be found in an amicus brief filed by the solicitor general in the Supreme Court’s South Florida Water Management District vs. Miccosukee Tribe of Indians, decided in 2004. Relying on the notion that the Clean Water Act treated navigable waters as a unitary concept, the amicus brief argued for the first time that point sources that transfer water from one navigable waterbody to another distinct navigable waterbody do not require Section 402 permits even though the “point source . . . might be described as the ‘cause-in-fact’ of the release of pollutants into navigable waters.”

The reason for the solicitor general’s surprising filing at the time was clear. The federal government was concerned that a different rule might subject to Clean Water Act permitting requirements the routine transfers of water by federal agencies such as the Bureau of Reclamation or the U.S. Army Corps of Engineers between distinct bodies of navigable water. In this respect, the primary institutional motivation behind the interpretation appeared to derive from the concerns of those agencies rather than from EPA.

Both during the Miccosukee oral argument and in the opinion she wrote for the Court in the case, Justice Sandra Day O’Connor left little doubt of her skepticism of the validity of the solicitor general’s view. At oral argument, she described it as “an extreme position” that needed “a fall-back position,” generating courtroom laughter.

And in the opinion she went to great lengths to explain the many ways that such an interpretation could not be squared with the structure and operation of the Clean Water Act. The opinion emphasized in particular how the unitary waters theory conflicted with those parts of the statute that seek to protect “individual waterbodies as well as ‘waters of the United States’ as a whole.” The Court, however, declined ultimately to decide the issue because it had not been raised in or decided by the lower courts.

Notwithstanding the Miccosukee Court’s clear skepticism, EPA subsequently embraced the solicitor general’s unitary waters theory in a rulemaking that established the WTR, which exempts from Clean Water Act Section 402 permit requirements transfers of water (even if polluted) between distinct waterbodies. And, relying very heavily on Chevron deference, two federal courts of appeals have rejected challenges to EPA’s rule that argued that the rule cannot be squared with the act’s plain meaning and clear focus on individual waterbodies.

The state of New York’s pending petition in New York v. EPA asks the Supreme Court to review the issue. Should Gorsuch adhere to his view of both the conclusive role of statutory text and the impropriety of Chevron deference in judicial review of agency interpretation, there is good reason to expect he would support the WTR’s challengers on the merits. Yet, hailing from Colorado, where such water transfers are routine, the justice’s personal policy preferences are likely sympathetic to EPA’s contrary position.

How Justice Gorsuch votes on New York’s petition may well provide an early test of the strength of the justice’s stated convictions.

Justice Gorsuch faces a case where neither choice is entirely satisfactory.

Updated Handbook Helps Navigate Post-Rapanos Clean Water Act
May 2012

(Washington, DC) — In a year marking the 40th anniversary of the Clean Water Act, federal courts across the country continue to struggle in determining jurisdiction and applying the fractured Supreme Court’s 2006 ruling in Rapanos v. United States, which has now been interpreted, applied, or cited in over 90 different cases arising in 35 states. Six years after the decision, the legal battle over federal Clean Water Act jurisdiction shows no signs of abating.