The dusky gopher frog, a spotted, stocky amphibian named for its dark color and tendency to live underground, resides in longleaf pine forests that were once abundant in coastal Alabama, Louisiana, and Mississippi.
Unfortunately for the frog, humans have cleared over ninety-eight percent of its habitat for farming, development, and timber plantations,
and it now holds the unhappy distinction of being one of the hundred most endangered species in the world.
By 2001, when the U.S. Fish and Wildlife Service (FWS) listed the species as endangered under the Endangered Species Act (ESA), the frog’s wild population had dwindled to a hundred individuals occupying a single pond in Mississippi.
Ten years later, when FWS designated critical habitat for the frog, the agency determined that solely protecting existing areas where the frog lived would not “adequately ensure the frog’s conservation” because an extreme weather event or infectious disease could wipe out the whole species.
To combat this risk, FWS also designated private land in Louisiana as unoccupied critical habitat, essential for the species’ survival.
The dusky gopher frog had not been seen in this Louisiana area since 1965, but with restoration efforts, FWS felt the land could serve as suitable habitat for the species in the future.
The private landowners, who had hoped to develop the site, sued the government, arguing that their land could not be designated as “critical habitat” for the frog if the frog could not currently live there.
At the end of 2018, the dispute about the dusky gopher frog’s habitat had advanced to the Supreme Court as Weyerhaeuser Co. v. U.S. Fish & Wildlife Service.
However, in its decision, the Court failed to clarify whether an area must be currently habitable by a species to be designated as “critical habitat.”
The Court determined only that the ESA “does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species.”
The Court remanded the case to the Court of Appeals for it to interpret the meaning of the word “habitat.”
Following the Court’s decision, FWS settled with the landowners and entered into a consent decree vacating the designation of the disputed area as critical habitat for the dusky gopher frog.
Therefore, the lower courts did not interpret the definition of “habitat” in the critical habitat provision of the ESA.
In August 2019, FWS and the National Marine Fisheries Service (NMFS) (together, “the Services”) issued new rules severely weakening protections for endangered species.
The regulations pertained in part to critical habitat designations.
Though the 2019 regulations leave the term “habitat” undefined, they severely curtail the Services’ ability to designate unoccupied areas as critical habitat for an endangered species, and they make it more difficult for the Services to designate critical habitat in general.
The regulations reference Weyerhaeuser as support for the new restrictions on critical habitat designations,
and are being challenged by two lawsuits, one brought by environmental groups
and another brought by state attorneys general.
These rules come a few months after the UN released a report showing that within decades, nearly one million species risk extinction.
In December 2020, the Services supplemented these regulations with a newly promulgated rule specifically defining “habitat” for critical habitat designations.
Like the 2019 regulations, this rule impedes the Services’ capabilities to conserve endangered species by protecting their habitats.
The ESA is the nation’s strongest law protecting endangered species and the often-fragile biodiversity in the United States.
As climate change rapidly changes environments and puts ever more species at risk, critical habitat designations could serve as an effective tool in the fight to protect biodiversity. Instead, the new regulations weaken and flout the ESA’s conservation mandate. This Note proposes a definition of the term “habitat” in the ESA that would allow the Services to account for climate change when designating critical habitat and therefore protect land essential for the conservation of endangered and threatened species in the future. This definition, along with more progressive implementation regulations for critical habitat designations, would clarify the Services’ role in protecting species’ habitats, while also complying with the text and purpose of the ESA and the Court’s decision in Weyerhaeuser.
Part I provides background and legislative history about the ESA and the role of critical habitat designations within the ESA, and discusses past agency regulations and case law concerning critical habitat designations. Part I also summarizes and addresses the Weyerhaeuser decision. Part II discusses the growing threat of mass extinction around the world and the associated need for legal regimes protecting biodiversity. Part II presents examples of ESA agency actions that have taken climate change into account. These examples demonstrate the scientific approach necessary to conserve species endangered by climate change, and Part II contrasts these actions with an analysis of recent regulations crippling the Services’ powers under the ESA. Part III argues that “habitat” must be defined broadly in order to allow the Services to fulfill their conservation mandate under the ESA, and proposes a scientifically supported definition of “habitat” that could be adopted by a future administration. This definition and related implementation regulations would allow the Services to make effective and forward-looking critical habitat designations, a necessary step to protect endangered and threatened species in an era of mass extinction. Part III also presents two case studies of species that may soon be listed as threatened or endangered and would benefit from the proposed definition, as climate change will likely cause their habitats to shift in the coming decades. These case studies epitomize the need for a definition of “habitat” that will allow the Services to utilize climate science and modeling in their conservation strategies.