When is unoccupied habitat “critical”?

Controversy and litigation have been pervasive since adoption of the Endangered Species Act in 1973, but the Supreme Court has been a relatively minor player in the law’s development. By my count, the Court so far has only addressed the substantive merits of an ESA claim three times (in TVA v Hill, 437 US 153 (1978); Babbitt v Sweet Home Chapter of Communities for a Great Oregon, 515 US 687 (1995), and National Association of Home Builders v Defenders of Wildlife, 551 US 644 (2007)). Looks like we’ll soon be able to add a fourth to that list. On Monday, the Court agreed to hear Weyerhauser Co. v. US Fish and Wildlife Service. The conflict in Weyerhauser revolves around designation of critical habitat for the dusky gopher frog, the not terribly charismatic but critically endangered species pictured above. In 2015, when it issued a recovery plan for the frog, FWS estimated that “a minimum of 135 individual adult frogs survive in the wild,” almost all of…

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