STEPHEN A. HIGGINSON, Circuit Judge:
This appeal requires us to consider the United States Fish and Wildlife Service's inclusion of private land in a critical-habitat designation under the Endangered Species Act. Misconceptions exist about how critical-habitat designations impact private property. Critical-habitat designations do not transform private land into wildlife refuges. A designation does not authorize the government or the public to access private lands. Following designation, the Fish and Wildlife Service cannot force private landowners to introduce endangered species onto their land or to make modifications to their land. In short, a critical-habitat designation alone does not require private landowners to participate in the conservation of an endangered species. In a thorough opinion, District Judge Martin L.C. Feldman held that the Fish and Wildlife Service properly applied the Endangered Species Act to private land in St. Tammany Parish, Louisiana. As we discuss below, we AFFIRM Judge Feldman's judgment upholding this critical-habitat designation.
FACTS AND PROCEEDINGS
This case is about a frog — the Rana sevosa — commonly known as the dusky gopher frog.
Together, Plaintiffs-Appellants Markle Interests, L.L.C., P&F Lumber Company 2000, L.L.C., PF Monroe Properties, L.L.C., and Weyerhaeuser Company (collectively, "the Landowners") own all of Unit 1. Weyerhaeuser Company holds a long-term timber lease on all of the land that does not expire until 2043. The Landowners intend to use the land for residential and commercial development and timber operations. Through consolidated suits, all of the Landowners filed actions for declaratory judgment and injunctive relief against the Service, its director, the Department of the Interior, and the Secretary of the Interior. The Landowners challenged only the Service's designation of Unit 1 as critical habitat, not the designation of land in Mississippi.
The district court allowed the Center for Biological Diversity and the Gulf Restoration Network (collectively, "the Intervenors") to intervene as defendants in support of the Service's final designation. All parties filed cross-motions for summary judgment. Although Judge Feldman granted summary judgment in favor of the Landowners on the issue of standing, he granted summary judgment in favor of the Service on the merits. See Markle Interests, LLC v. U.S. Fish & Wildlife Serv., 40 F.Supp.3d 744, 748, 769 (E.D. La. 2014). The Landowners timely appealed.
STANDARD OF REVIEW
We review a district court's grant of summary judgment de novo. Nola Spice Designs, L.L.C. v. Haydel Enters., Inc., 783 F.3d 527, 536 (5th Cir. 2015); see also Sabine River Auth. v. U.S. Dep't of Interior, 951 F.2d 669, 679 (5th Cir. 1992) (noting that the court of appeals reviews the administrative record de novo when the district court reviewed an agency's decision by way of a motion for summary judgment). Our review of the Service's administration
Review under the arbitrary-and-capricious standard is "extremely limited and highly deferential," Gulf Restoration Network v. McCarthy, 783 F.3d 227, 243 (5th Cir. 2015) (internal quotation marks omitted), and "there is a presumption that the agency's decision is valid," La. Pub. Serv. Comm'n v. F.E.R.C., 761 F.3d 540, 558 (5th Cir. 2014) (internal quotation marks omitted). The plaintiff has the burden of overcoming the presumption of validity. La. Pub. Serv. Comm'n, 761 F.3d at 558.
Under the arbitrary-and-capricious standard,
Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 658, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (internal quotation marks omitted). We must be mindful not to substitute our judgment for the agency's. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). That said, we must still ensure that "[the] agency examine[d] the relevant data and articulate[d] a satisfactory explanation for its action." Id. (internal quotation marks omitted). "We will uphold an agency's action if its reasons and policy choices satisfy minimum standards of rationality." 10 Ring Precision, Inc. v. Jones, 722 F.3d 711, 723 (5th Cir. 2013) (internal quotation marks omitted).
The Landowners raise three challenges to the Service's designation of Unit 1 as critical habitat for the dusky gopher frog. They argue that the designation (1) violates the ESA and the APA, (2) exceeds the Service's constitutional authority under the Commerce Clause, U.S. Const. art. I, § 8, cl. 3, and (3) violates the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq. As we discuss below, each of their arguments fails.
I. Endangered Species Act
Congress enacted the ESA "to provide a means whereby the ecosystems upon which endangered species ... depend may be conserved" and "to provide a program for the conservation of such endangered species." 16 U.S.C. § 1531(b). The ESA broadly defines "conservation." It includes "the use of all methods and procedures which are necessary to bring any endangered species ... to the point at which the measures provided [by the ESA] are no longer necessary." Id. § 1532(3). In other words, "the objective of the ESA is
To achieve this objective, the ESA requires the Service to first identify and list endangered and threatened species. See 16 U.S.C. § 1533(a)(1). Listing a species as endangered or threatened then triggers the Service's statutory duty to designate critical habitat "to the maximum extent prudent and determinable." See id. § 1533(a)(3)(A)(i).
Before addressing the merits of the Service's critical-habitat designation, we first address whether the Landowners have standing to challenge the designation. "The question of standing involves both constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise." Bennett, 520 U.S. at 162, 117 S.Ct. 1154
Even though the Service did not appeal the district court's standing conclusion, we must independently assess the Landowners' Article III standing.
Here, the Landowners assert two alleged injuries: lost future development and lost property value. The first — loss of future development — is too speculative to support Article III standing. Although "[a]n increased regulatory burden typically satisfies the injury in fact requirement," Contender Farms, L.L.P. v. U.S. Dep't of Agric., 779 F.3d 258, 266 (5th Cir. 2015), any regulatory burden on Unit 1 is purely speculative at this point. As the Service emphasized in the designation, if future development occurring on Unit 1 avoids impacting jurisdictional wetlands, no federal permit would be required and the ESA's Section 7 consultation process would not be triggered. See Final Designation, 77 Fed. Reg. at 35,126 (noting that the range of possible economic impact to Unit 1 of $0 to $33.9 million "reflects uncertainty regarding future land use"); id. at 35,140 (observing that "considerable uncertainty
Because the Landowners have not provided evidence that specific development projects are likely to be impacted by Section 7 consultation,
The Landowners' assertion of lost property value, by contrast, is a concrete and particularized injury that supports standing. See Sabine River Auth., 951 F.2d at 674 (recognizing that injury in fact includes economic injury). The Landowners assert that their land has already lost value as a result of the critical-habitat designation. Indeed, as the Service recognized in its Final Economic Analysis, given the "stigma" attached to critical-habitat designations, "[p]ublic attitudes about the limits or restrictions that critical habitat may impose can cause real economic effects to property owners, regardless of whether such limits are actually imposed." As a result, "a property that is designated as critical habitat may have a lower market value than an identical property that is not within the boundaries of critical habitat due to perceived limitations or restrictions." The Service further assumed that "any reduction in land value due to the designation of critical habitat will happen immediately at the time of the designation."
Causation and redressability flow naturally from this injury. If a plaintiff — or, here, the plaintiffs' land — is the object of government action, "there is ordinarily little question that the action ... has caused him injury, and that a judgment preventing... the action will redress it." Lujan,
The question nevertheless remains whether the Landowners satisfy the APA's zone-of-interests requirement. See Bennett, 520 U.S. at 175-77, 117 S.Ct. 1154. The Service, however, has not argued — either in the district court or this court — that the Landowners' interests fall outside the zone of interests that the ESA is designed to protect. "Unlike constitutional standing, prudential standing arguments may be waived." Bd. of Miss. Levee Comm'rs v. EPA, 674 F.3d 409, 417-18 (5th Cir. 2012).
B. Critical-Habitat Designation
The ESA expressly envisions two types of critical habitat: areas occupied by the endangered species at the time it is listed as endangered and areas not occupied by the species at the time of listing. See 16 U.S.C. § 1532(5)(A)(i)-(ii). To designate an occupied area as critical habitat, the Service must demonstrate that the area contains "those physical or biological features ... essential to the conservation of the species."
The Service must designate critical habitat "on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact, of specifying any particular area as critical habitat." Id. § 1533(b)(2). "When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential." Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 76 L.Ed.2d 437 (1983); Medina Cnty. Envtl. Action Ass'n v. Surface Transp. Bd., 602 F.3d 687, 699 (5th Cir. 2010) ("Where an agency's particular technical expertise is involved, we are at our most deferential in reviewing the agency's findings.").
In addition, under the regulations in place at the time of the critical-habitat designation at issue here, before the Service could designate unoccupied land as critical habitat, it first had to make a finding that "a designation limited to [a species'] present range would be inadequate to ensure the conservation of the species." 50 C.F.R. § 424.12(e) (2012) (emphasis added). Unit 1 is unoccupied. Thus, under its own regulations, the Service first had to make an inadequacy determination. The Service's first proposed designation included only land in Mississippi and did not include Unit 1. See Original Proposal, 75 Fed. Reg. at 31,395-99 (identifying eleven units in Mississippi). During the peer-review and comment process on this original proposal, the expert reviewers expressed that the designated habitat in the proposal was inadequate to ensure the conservation of the frog. The experts therefore urged the Service to expand the designation to Louisiana or Alabama, the two other states in the frog's historical range. See Revised Proposal, 76 Fed. Reg. at 59,776; Final Designation, 77 Fed. Reg. at 35,119, 35,121, 35,123-24.
The Service adopted this consensus expert conclusion, finding that designating the occupied land in Mississippi was "not sufficient to conserve the species." Final Designation, 77 Fed. Reg. at 35,123. The Service explained that "[r]ecovery of the dusky gopher frog will not be possible without the establishment of additional breeding populations of the species," and it emphasized that it was necessary to designate critical habitat outside of Mississippi to protect against potential local events, such as drought and other environmental disasters. Id. at 35,124-25. The Service therefore determined that "[a]dditional areas that were not known to be occupied at the time of listing are essential for the conservation of the species." Id. at 35,123. In sum, all of the experts agreed that designating occupied land alone would not be sufficient to conserve the dusky gopher frog. Thus, the Service's prerequisite inadequacy finding — a finding that the Landowners did not challenge
The Service therefore searched for isolated, ephemeral ponds within the historical range of the frog in Alabama and Louisiana. See Final Designation, 77 Fed. Reg. at 35,124. The area in Alabama where the frog once lived has since been replaced by a residential development. See id. The Service noted that it was unable to find any breeding sites that the frog might use in the future in Alabama. See id. In contrast, the Service explained that Unit 1's five ephemeral ponds are "intact and of remarkable quality." Id. at 35,133. It noted that the ponds in Unit 1 "are in close proximity to each other, which would allow movement of adult gopher frogs between them" and would "provide metapopulation structure that supports long-term survival and population resiliency." Id. "Based on the best scientific information available to the Service," the Service concluded that "the five ponds in Unit 1 provide breeding habitat that in its totality is not known to be present elsewhere within the historic range of the dusky gopher frog." Id. at 35,124.
Finally, in addition to ephemeral ponds, dusky gopher frogs also require upland forested habitat and connected corridors that allow them to move between their breeding and nonbreeding habitats. See id. at 35,131-32. Looking to the upland terrestrial habitat surrounding Unit 1's ephemeral ponds, the Service relied on scientific measurements and data to draw a boundary around Unit 1. The Service used digital aerial photography to map the ponds and then to delineate critical-habitat units by demarcating a buffer zone around the ponds by a radius of 621 meters (or 2,037 feet). Id. at 35,134. This value, which was based on data collected during multiple gopher frog studies, represented the median farthest distance that frogs had traveled from breeding sites (571 meters or 1,873 feet) plus an extra 50 meters (or 164 feet) "to minimize the edge effects of the surrounding land use." Id. The Service finally used aerial imagery to connect critical-habitat
Altogether, the Service concluded:
Id. As Judge Feldman reasoned below, "[the Service's] finding that the unique ponds located on Unit 1 are essential for the frog's recovery is supported by the ESA and by the record; it therefore must be upheld in law as a permissible interpretation of the ESA." Markle Interests, 40 F.Supp.3d at 761 (applying Chevron deference).
On appeal, the Landowners do not dispute the scientific or factual support for the Service's determination that Unit 1 is essential.
As Judge Feldman noted, Congress has not defined the word "essential" in the ESA. Hence the Service has the authority to interpret the term. See Sierra Club, 245 F.3d at 438 ("Once a species has been listed as endangered ... the ESA states that the Secretary `shall' designate a critical habitat `to the maximum extent prudent or determinable.' The ESA leaves to the Secretary the task of defining `prudent' and `determinable.'" (quoting 16 U.S.C. § 1533(h))). To issue a formal rule designating critical habitat for the frog, the Service necessarily had to interpret and apply the applicable ESA provisions, including the word "essential." See Nat'l R.R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. 407, 420, 112 S.Ct. 1394, 118 L.Ed.2d 52 (1992) ("[W]e defer to an interpretation which was a necessary presupposition of the [agency]'s decision."); cf. S.D. ex rel. Dickson v. Hood, 391 F.3d 581, 596 & n. 13 (5th Cir. 2004) (explaining that, when the Centers for Medicare and Medicaid Services are charged with reviewing and approving state Medicaid plans to ensure that the plans conform to the Act, the agency implicitly interprets the Act when granting approvals). The Service issued the designation as a formal agency rule after two rounds of notice and comment. Thus, the Service's interpretation of the term "essential" is entitled to Chevron deference. See Home Builders, 551 U.S. at 665, 127 S.Ct. 2518 (applying Chevron deference in the context of the ESA); Chevron, 467 U.S. at 842-44, 104 S.Ct. 2778.
We consider first their argument that it is an unreasonable interpretation of the ESA to describe Unit 1 as essential for the conservation of the dusky gopher frog when Unit 1 is not currently habitable by the frog. The statute does not support this argument. There is no habitability requirement in the text of the ESA or the implementing regulations. The statute requires the Service to designate "essential" areas, without further defining "essential" to mean "habitable." See Bear Valley Mut. Water Co. v. Jewell, 790 F.3d 977, 994 (9th Cir. 2015) (upholding the designation of unoccupied critical habitat, even though the area was not habitable by the endangered species). The Landowners' proposed extra-textual limit on the designation of unoccupied land — habitability — effectively conflates the standard for designating unoccupied land with the standard for designating occupied land. See Dep't of Homeland Sec. v. MacLean, ___ U.S. ___, 135 S.Ct. 913, 919, 190 L.Ed.2d 771 (2015) ("Congress generally acts intentionally when it uses particular language in one section of a statute but omits it in another."). As Judge Feldman insightfully observed, "[their position] is ... contrary to the ESA; [the Landowners] equate what Congress plainly differentiates: the ESA defines two distinct types of critical habitat, occupied and unoccupied; only occupied habitat must contain all of the relevant [physical or biological features]." Markle Interests, 40 F.Supp.3d at 761. Thus, the plain text of the ESA does not require Unit 1 to be habitable. "[R]ather," as Judge Feldman elaborated, "[the Service] is tasked with designating as critical unoccupied habitat so long as it determines it is `essential for the conservation of the species' and `only when a designation limited to its present range would be inadequate to ensure the conservation of the species.'" Id. at 762 (quoting 50 C.F.R. § 424.12(e)). Here, the Service provided scientific data to support its finding that Unit 1 is essential, and as Judge Feldman held, "[the Landowners] have not demonstrated
We consider next the argument that it is an unreasonable interpretation of the ESA to describe Unit 1 as essential for the conservation of the dusky gopher frog when Unit 1 "is not currently supporting the conservation of the species in any way and the Service has no reasonable basis to believe that it will do so at any point in the foreseeable future." Like their proposed habitability requirement, the Landowners' proposed temporal requirement — considering whether the frog can live on the land "currently" or in the "foreseeable future" — also lacks legal support and is undermined by the ESA's text. The ESA's critical-habitat provisions do not require the Service to know when a protected species will be conserved as a result of the designation. The Service is required to designate unoccupied areas as critical habitat if these areas are "essential for the conservation of the species." 16 U.S.C. § 1532(5)(A)(ii). The statute defines "conservation" as "the use of all methods and procedures which are necessary to bring any endangered species ... to the point at which the measures provided ... are no longer necessary." Id. § 1532(3); cf. Alaska Oil & Gas Ass'n v. Jewell, 815 F.3d 544, 555 (9th Cir. 2016) ("The Act is concerned with protecting the future of the species[.]"). Neither of these provisions sets a deadline for achieving this ultimate conservation goal. See Home Builders Ass'n of N. Cal. v. U.S. Fish & Wildlife Serv., 616 F.3d 983, 989 (9th Cir. 2010) (holding that the Service need not determine "exactly when conservation will be complete" before making a critical-habitat designation). And the Landowners do not explain why it is impossible to make an essentiality determination without determining when (or whether) the conservation goal will be achieved. See id. ("A seller of sporting goods should be able to identify which rod and reel are essential to catching a largemouth bass, but is not expected to predict when the customer will catch one."). As Judge Feldman concluded, "[the Service's] failure (as yet) to identify how or when a viable population of dusky gopher frogs will be achieved, as indifferent and overreaching by the government as it appears, does not serve to invalidate its finding that Unit 1 was part of the minimum required habitat for the frog's conservation." Markle Interests, 40 F.Supp.3d at 762-63. We also note that, in contrast to the habitat-designation provision at issue here, the ESA's recovery-plan provisions do require the Service to estimate when a species will be conserved. See 16 U.S.C. § 1533(f)(1)(B)(iii). Congress's inclusion of a conservation-timeline requirement for recovery plans, but omission of it for critical-habitat designations, further underscores the weakness of the Landowners' argument. See MacLean, 135 S.Ct. at 919.
Moreover, we observe that the Landowners' proposed temporal requirement could effectively exclude all private land not currently occupied by the species from
We next consider the argument that that the Service has interpreted the word "essential" unreasonably because its interpretation fails to place "meaningful limits" on the Service's power under the ESA. Thus, we consider whether, in designating Unit 1, the Service abided the meaningful limits that the ESA and the agency's implementing regulations set on the Service's authority to designate unoccupied areas as critical habitat. Under the regulations in effect at the time that Unit 1 was designated, the Service had to find that the species's occupied habitat was inadequate before it could even consider designating unoccupied habitat as critical. 50 C.F.R. § 424.12(e). In part, this preliminary determination provided a limit to the term "essential" as it relates to unoccupied areas. Unoccupied areas could be essential only if occupied areas were found to be inadequate for conserving the species. See Bear Valley Mut. Water Co., 790 F.3d at 994 (recognizing that the inadequacy and essentiality requirements overlap). Here, the Service made that threshold inadequacy
Next, under the ESA itself, the Service can designate unoccupied land only if it is "essential for the conservation of the species." 16 U.S.C. § 1532(5)(A)(ii). "Conservation" is defined as "the use of all methods and procedures which are necessary to bring any endangered species ... to the point at which the measures provided ... are no longer necessary." Id. § 1532(3) (emphasis added). In light of this definition, we find implausible the Landowners' parade of horribles in which they suggest that, if the Service can designate an area like Unit 1 as critical habitat, it could designate "much of the land in the United States" as well. They contend that "[b]ecause any land may conceivably be turned into suitable habitat with enough time, effort, and resources, th[e] [Service's] interpretation gives the Service nearly limitless authority to burden private lands with a critical habitat designation." But we find it hard to see how the Service would be able to satisfactorily explain why randomly chosen land — whether an empty field or, as the Landowners suggest, land covered in "buildings" and "pavement" — would be any more "necessary" to a given species' recovery than any other arbitrarily chosen empty field or paved lot.
In sum, the Landowners have not established that the Service interpreted the ESA unreasonably — and was thus undeserving of Chevron deference — when it found that Unit 1 was essential for the conservation of the dusky gopher frog. Likewise, the Landowners have not shown that the Service's essentiality finding failed to "satisfy minimum standards of rationality," 10 Ring Precision, 722 F.3d at 723, which means that they have not shown that the Service acted arbitrarily or capriciously, either.
Finally, the Landowners contend that it is improper to protect Unit 1 with a critical-habitat designation when there are other ways to ensure that Unit 1 will assist with the conservation of the gopher frog. It is true that the Service could manage Unit 1 by purchasing the land. See 16
In sum, the designation of Unit 1 as critical habitat was not arbitrary and capricious nor based upon an unreasonable interpretation of the ESA. The Service reasonably determined (1) that designating occupied habitat alone would be inadequate to ensure the conservation of the dusky gopher frog and (2) that Unit 1 is essential for the conservation of the frog. We thus agree with Judge Feldman: "the law authorizes such action and ... the government has acted within the law." Markle Interests, 40 F.Supp.3d at 759-60.
C. Decision Not to Exclude Unit 1
In addition to attacking the Service's conclusion that Unit 1 is essential for the conservation of the dusky gopher frog, the Landowners also challenge the Service's conclusion that the economic impacts on Unit 1 are not disproportionate. See Final Designation, 77 Fed. Reg. at 35,141. The Landowners argue that because the benefits of excluding Unit 1 from the designation clearly outweigh the benefits of including it in the designation, the Service's decision is arbitrary and capricious. The Landowners contend that because Unit 1 is not currently habitable by the dusky gopher frog, the land provides no biological benefit to the frog. They emphasize that Unit 1, by contrast, bears a potential loss of development value of up to $33.9 million over twenty years.
The ESA mandates that the Service "tak[e] into consideration the economic impact ... of specifying any particular area as critical habitat." 16 U.S.C. § 1533(b)(2). After it takes this impact into consideration, the Service
Id. (emphasis added). The Service argues that once it has fulfilled its statutory obligation to consider economic impacts, a decision to not exclude an area is discretionary and thus not reviewable in court. The Service is correct. Under the APA, decisions "committed to agency discretion by law" are not reviewable in federal court. 5 U.S.C. § 701(a)(2). An action is committed to agency discretion when there is "no meaningful standard against which to judge the agency's exercise of discretion." Heckler v. Chaney, 470 U.S. 821, 830, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985). "[I]f no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for `abuse of discretion.'" Id.
The only other circuit court that has confronted this issue has recognized that there are no manageable standards for reviewing the Service's decision not to exercise its discretionary authority to exclude an area from a critical-habitat designation. See Bear Valley Mut. Water Co., 790 F.3d at 989-90. It therefore held that the decision not to exclude is unreviewable.
We see no reason to chart a new path on this issue in concluding that we cannot review the Service's decision not to exercise its discretion to exclude Unit 1 from the critical-habitat designation. Section 1533(b)(2) articulates a standard for reviewing the Service's decision to exclude an area. But the statute is silent on a standard for reviewing the Service's decision to not exclude an area. Put another way, the section establishes a discretionary process by which the Service may exclude areas from designation, but it does not articulate any standard governing when the Service must exclude an area from designation. See Bear Valley Mut. Water Co., 790 F.3d at 989 ("[W]here a statute is written in the permissive, an agency's decision not to act is considered presumptively unreviewable because courts lack `a focus for judicial review ... to determine whether the agency exceeded its statutory powers.'" (quoting Heckler, 470 U.S. at 832, 105 S.Ct. 1649)). Thus, even were we to assume that the Landowners are correct that the economic benefits of exclusion outweigh the conservation benefits of designation, the Service is still not obligated to exclude Unit 1. That decision is committed to the agency's discretion and is not reviewable.
The Supreme Court's recent decision in Michigan v. EPA, ___ U.S. ___, 135 S.Ct. 2699, 192 L.Ed.2d 674 (2015), does not compel a contrary conclusion. In Michigan, the Environmental Protection Agency ("EPA") had interpreted a provision of the Clean Air Act to not require the consideration of costs when deciding whether to regulate hazardous emissions from power plants. Id. at 2706. Although the Supreme Court held that the EPA misinterpreted the statute, the Court emphasized that it was not requiring the agency "to conduct a formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value." Id. at 2711. The Court further explained that "[i]t will be up to the Agency to decide (as always, within the limits of reasonable interpretation) how to account for cost." Id.
Unlike the provision of the Clean Air Act at issue in Michigan, the ESA explicitly mandates "consideration" of "economic impact." 16 U.S.C. § 1533(b)(2); see Bennett, 520 U.S. at 172, 117 S.Ct. 1154. The Service fulfilled this requirement by commissioning an economic report by Industrial Economics, Inc. That analysis estimated the economic impact on Unit 1, and to further refine that analysis, it included three impact scenarios. The report noted that Unit 1 bears a potential loss of development value ranging from $0
II. Commerce Clause
Having concluded that the Service's designation of Unit 1 as critical habitat was not arbitrary and capricious, we must next consider the Landowners' alternative argument that the ESA exceeds Congress's powers under the Commerce Clause. The Commerce Clause gives Congress the power "[t]o regulate Commerce ... among the several States." U.S. Const. art. I, § 8, cl. 3. In United States v. Lopez, the Supreme Court defined three broad categories of federal legislation that are consistent with this power. 514 U.S. 549, 558, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). This case concerns the third Lopez category — that is, whether the federal action "substantially affect[s] interstate commerce." Id. at 558-59, 115 S.Ct. 1624 (citations omitted).
The Landowners concede that, "properly limited and confined to the statutory definition," the critical-habitat provision of the ESA is a constitutional exercise of Congress's Commerce Clause authority. They maintain, however, that the designation of Unit 1 as critical habitat for the dusky gopher frog exceeds the scope of an otherwise constitutional power. Viewed this narrowly, the designation of Unit 1 is intrastate (not interstate) activity. The Landowners further argue that "[t]here is simply no rational basis to conclude that the use of Unit 1 will substantially affect interstate commerce." In support of this narrow framing of the issue, the Landowners imply that it is inappropriate to aggregate the effect of designating Unit 1 with the effect of all other critical-habitat designations nationwide. Instead, the Landowners argue that we should analyze the commercial impact of the Unit 1 designation independent of all other designations. But as Judge Feldman explained, "each application of the ESA is not itself subject to the same tests for determining whether the underlying statute is a constitutional exercise of the Commerce Clause." Markle Interests, 40 F.Supp.3d at 758. We agree with Judge Feldman that "the [Landowners'] constitutional claim is foreclosed by binding precedent." Id.
The Supreme Court has outlined four considerations that are relevant when analyzing whether Congress can regulate purely intrastate activities under the third Lopez prong. See United States v. Morrison, 529 U.S. 598, 609-12, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000). First, courts should consider whether the intrastate activity "in question has been some sort of economic endeavor." Id. at 611, 120 S.Ct. 1740. Second, courts should consider whether there is an "express jurisdictional element" in the statute that might limit its application to instances that "have an explicit connection with or effect on interstate commerce." Id. at 611-12, 120 S.Ct. 1740. The next consideration that should inform the analysis is legislative history
The first consideration is whether the regulated intrastate activity is economic or commercial in nature. Id. at 611, 120 S.Ct. 1740. The question thus arises: what is the regulated activity that we must analyze? See GDF Realty Invs., Ltd. v. Norton, 326 F.3d 622, 633 (5th Cir. 2003). In GDF Realty, where we examined the "take" provision
The next issue is whether the designation of Unit 1 as critical habitat is economic or commercial in nature. "[W]hether an activity is economic or commercial is to be given a broad reading in this context." Id. at 638. In certain cases, an intrastate activity may have a direct relationship to commerce and therefore the intrastate activity alone may substantially affect interstate commerce. Alternatively, "the regulation can reach intrastate commercial activity that by itself is too trivial to have a substantial effect on interstate commerce but which, when aggregated with similar and related activity, can substantially affect interstate commerce." United States v. Ho, 311 F.3d 589, 599 (5th Cir. 2002).
The designation of Unit 1 alone may not have a direct relationship to commerce, but under the aggregation principle, the designation of Unit 1 survives constitutional muster. Under this principle, the intrastate activity can be regulated if it is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." Gonzales v. Raich, 545 U.S. 1, 36, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005) (quoting Lopez, 514 U.S. at 561, 115 S.Ct. 1624). Thus, there are two factors we must consider: (1) whether the provision mandating the designation of critical habitat is part of an economic regulatory scheme, and (2) whether designation is essential to that scheme.
We have already concluded that the ESA is an economic regulatory scheme. See GDF Realty, 326 F.3d at 639 ("ESA's protection of endangered species is economic in nature."); id. at 640 ("ESA is an economic regulatory scheme ...."). Congress enacted the ESA to curb species extinction "as a consequence of economic growth and development untempered by adequate concern and conservation." 16 U.S.C. § 1531(a)(1). Because the ESA's drafters sought to protect the "incalculable" value of biodiversity, the ESA prohibits
But it is not sufficient that the ESA is an economic regulatory scheme. The critical-habitat provision must also be an essential component of the ESA. If the process of designating critical habitat is "an essential part of a larger regulation of economic activity," then whether that process — designation — "ensnares some purely intrastate activity is of no moment." Raich, 545 U.S. at 22, 125 S.Ct. 2195. "[T]he de minimis character of individual instances arising under that statute is of no consequence." Id. at 17, 125 S.Ct. 2195 (citations and internal quotation marks omitted). When Congress has regulated a class of activities, we "have no power to excise, as trivial, individual instances of the class." Id. at 23, 125 S.Ct. 2195 (citation and internal quotation marks omitted). We conclude that designating critical habitat is an essential part of the ESA's economic regulatory scheme.
This conclusion is consistent with our analysis of the ESA's "take" provision in GDF Realty. There, we held that "takes" of an endangered species that lived only in Texas could be aggregated with takes of other endangered species nationwide to survive a Commerce Clause challenge. GDF Realty, 326 F.3d at 640-41. That case concerned the Service's regulation of takes of six subterranean endangered species ("the Cave Species") located solely in two counties in Texas. Id. at 625. Similar to the Landowners here, the owners of some of the land under which these species lived wanted to develop the land into a commercial and residential area; they sued the government, claiming that the take provision of the ESA, as applied to the Cave Species, exceeded the boundaries of the Commerce Clause. Id. at 624, 626. Addressing this claim, we upheld the take provision. We explained that, in the aggregate, takes of all endangered species have a substantial effect on interstate commerce. See id. at 638-40. Because of the "interdependence of [all] species," we held that regulating the takes of the Cave Species was an essential part of the larger regulatory scheme of the ESA, in that, without this regulation, the regulatory scheme could be undercut by piecemeal extinctions. Id. at 639-40. Every other circuit court that has addressed similar challenges has also upheld the ESA as a valid exercise of Congress's Commerce Clause power. See Gibbs v. Babbitt, 214 F.3d 483, 497-98 (4th Cir. 2000); San Luis & Delta-Mendota Water Auth. v. Salazar, 638 F.3d 1163, 1177 (9th Cir. 2011); Wyoming v. U.S. Dep't of Interior, 442 F.3d 1262, 1264 (10th Cir. 2006) (per curiam), aff'g 360 F.Supp.2d 1214, 1240 (D. Wyo. 2005); Ala.-Tombigbee Rivers Coal. v. Kempthorne, 477 F.3d 1250, 1274 (11th Cir. 2007); Rancho Viejo, LLC v. Norton, 323 F.3d 1062, 1080 (D.C. Cir. 2003); Nat'l Ass'n of Home Builders v. Babbitt, 130 F.3d 1041, 1049-57 (D.C. Cir. 1997). The Landowners have not identified any federal court of appeals that has held otherwise.
This caselaw compels the same conclusion here. For one, we see no basis to distinguish the ESA's prohibition on
Given this conclusion, the designation of Unit 1 may be aggregated with all other critical-habitat designations. As Judge Feldman correctly observed, "[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power to excise, as trivial, individual instances of the class." Markle Interests, 40 F.Supp.3d at 759 (alteration in original) (quoting Raich, 545 U.S. at 23, 125 S.Ct. 2195) (internal quotation marks omitted). "[W]hen a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence." Raich, 545 U.S. at 17, 125 S.Ct. 2195 (citations and internal quotation marks omitted). We therefore will not look at the designation of Unit 1 in isolation, but instead we consider it aggregated with all other critical-habitat designations. Judge Feldman reached the same conclusion, explaining that, "[a]ggregating the regulation of activities that adversely modify the frog's critical habitat" — including the isolated designation of Unit 1 — "with the regulation of activities that affect other listed species' habitat, the designation of critical habitat by the [Service] is a constitutionally valid application of a constitutionally valid Commerce Clause regulatory scheme." Markle Interests, 40 F.Supp.3d at 759. Because the Landowners concede that the critical-habitat provision of the ESA is a valid exercise of Congress's Commerce Clause authority, we can likewise conclude that the application of the ESA's critical-habitat provision to Unit 1 is a constitutional exercise of the Commerce Clause power.
III. National Environmental Policy Act
Finally, the Landowners contend that the Service violated NEPA by failing to prepare an environmental impact statement before designating Unit 1 as critical habitat. If proposed federal action will "significantly affect the quality of the human environment," NEPA requires the relevant federal agency to provide an environmental impact statement for the proposed action. 42 U.S.C. § 4332(2)(C). In Sabine River Authority, we explained that an environmental impact statement "is not required for non major action or a major action which does not have significant impact on the environment." 951 F.2d at 677 (citation and internal quotation marks omitted). This standard necessarily means that if federal action will not result in any change to the environment, then the action does not trigger NEPA's impact-statement requirement. See id. at 679 (noting that federal action "did not effectuate any change to the environment which would otherwise trigger the need to prepare an [environmental impact statement]"); see also Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S. 766, 774, 103 S.Ct. 1556, 75 L.Ed.2d 534 (1983) (explaining that no environmental impact statement is required if health damage stemming from federal action "would not be proximately related to a change in the physical environment"); City of Dallas, Tex. v. Hall, 562 F.3d 712, 723 (5th Cir. 2009) (holding that an environmental impact statement was not required when the federal action "[did] not effect a change in the use or character of land or in the physical environment").
Judge Feldman correctly held that the designation of Unit 1 does not trigger
Alternatively, this claim is resolved on the threshold issue of the Landowners' standing to raise this NEPA claim. A plaintiff bringing a claim under NEPA must not only have Article III standing to pursue the claim, but also fall within the zone of interests sought to be protected under the statute. See Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 883, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); Sabine River Auth., 951 F.2d at 675 (recognizing that the zone-of-interests test applies to challenges under NEPA). Other circuit courts have held that "a plaintiff who asserts purely economic injuries does not have standing to challenge an agency action under NEPA." Nev. Land Action Ass'n v. U.S. Forest Serv., 8 F.3d 713, 716 (9th Cir. 1993) (citing cases from the Fourth, Eighth, Ninth, and D.C. Circuits). Consistent with this conclusion, we have observed in dicta that a "disappointed contractor" who was injured by an easement that prevented development opportunities would not have standing under the zone-of-interests test because "NEPA was not designed to protect contractors' rights: it was designed to protect the environment." Sabine River Auth., 951 F.2d at 676. The Landowners' asserted injuries here are similarly economic, not environmental: lost future development and lost property value. These economic injuries do not fall within the zone of interests protected by NEPA, and the Landowners therefore lack standing to sue to enforce NEPA's impact-statement requirement.
For the reasons stated above, we AFFIRM the judgment of the district court.
PRISCILLA R. OWEN, Circuit Judge, dissenting:
There is a gap in the reasoning of the majority opinion that cannot be bridged. The area at issue is not presently "essential for the conservation of the [endangered] species"
The majority opinion upholds the governmental action here on nothing more than the Government's hope or speculation that the landowners and lessors of the 1,544 acres at issue will pay for removal of the currently existing pine trees used in commercial timber operations and replace them with another tree variety suitable for dusky gopher frog habitat, and perform other modifications as well as future annual maintenance, that might then support the species if, with the landowners' cooperation, it is reintroduced to the area. The language of the Endangered Species Act does not permit such an expansive interpretation and consequent overreach by the Government.
Undoubtedly, the ephemeral ponds on the property at issue are somewhat rare. But it is undisputed that the ponds cannot themselves sustain a dusky gopher frog population. It is only with significant transformation and then, annual maintenance, each dependent on the assent and financial contribution of private landowners, that the area, including the ponds, might play a role in conservation. The Endangered Species Act does not permit the Government to designate an area as "critical habitat," and therefore use that designation as leverage against the landowners, based on one feature of an area when that one feature cannot support the existence of the species and significant alterations to the area as a whole would be required.
The majority opinion's holding is unprecedented and sweeping.
A Final Rule
The Service specifically found in its Final Rule that Unit 1 contains only one of the physical or biological features and habitat characteristics required to sustain the
In particular, the Service found that an open-canopied longleaf pine ecosystem is necessary for the habitat of this species of frog.
Review of the Service's decisions under the Endangered Species Act is governed by the Administrative Procedure Act (APA).
The Final Rule reflects that "Unit 1 is not currently occupied nor was it occupied at the time the dusky gopher frog was listed [as an endangered species]."
The word "essential" means more than desirable. Black's Law Dictionary defines "essential" as
The Government's, and the majority opinion's, interpretation of "essential" means that virtually any part of the United States could be designated as "critical habitat" for any given endangered species so long as the property could be modified in a way that would support introduction and subsequent conservation of the species on it. This is not a reasonable construction of § 1532(5)(A)(2).
We are not presented with a case in which land, though unoccupied by an endangered species, provides elements to neighboring or downstream property that are essential to the survival of the species in the areas that it does occupy. For example, the Ninth Circuit concluded that certain areas, though unoccupied, were "essential" to an endangered species (the Santa Ana sucker, a small fish) because the designated areas were "the primary sources of high quality coarse sediment for the downstream occupied portions of the Santa Ana River," and that "coarse sediment was essential to the sucker because [it] provided a spawning ground as well as a feeding ground from which the sucker obtained algae, insects, and detritus."
The majority opinion cites the Ninth Circuit's decision regarding the Santa Ana sucker as support for the majority opinion's assertion that "[t]here is no habitability requirement in the text of the ESA or the implementing regulations. The statute requires the Service to designate `essential' areas, without further defining `essential' to mean `habitable.'"
The meaning of the word "essential" undoubtedly vests the Service with significant discretion in determining if an area is "essential" to the conservation of a species, but there are limits to a word's meaning and hence the Service's discretion. The Service's interpretation of "essential for the conservation of the species"
In MCI Telecommunications Corp. v. AT&T Co., 23 U.S.C. § 203(a) required long-distance communications common carriers to file tariffs with the Federal Communications Commission (FCC).
The District of Columbia Circuit Court held in Southwestern Bell Corp. v. FCC that an agency's interpretation of a statute is not entitled to deference when that interpretation "`goes beyond the meaning that the statute can bear.'"
The majority opinion says that MCI Telecommunications Corp. is distinguishable because in that case, the agency's interpretation of "modify" "flatly contradicted the definition provided by `virtually every dictionary [the Court] was aware of.'"
The Service's implicit construction of the meaning of "essential for the conservation of the species" is not entitled to deference because it exceeds the boundaries of the latitude given to an agency in construing a statute to which Chevron deference is applicable. The term "essential" cannot reasonably be construed to encompass land that is not in fact "essential for the conservation of the species." When the only possible basis for designating an area as "critical habitat" is its potential use as actual habitat, an area cannot be "essential for the conservation of the species" if it is uninhabitable by the species and there is no reasonable probability that it will become habitable by the species. Even if scientists agree that an area could be modified to sustain a species, there must be some basis for concluding that it is likely that the area will be so modified. Otherwise, the area could not and will not be used for conservation of the species and therefore cannot be "essential" to the conservation of the species.
With great respect, at other junctures, the majority opinion misdirects the inquiry as to the proper meaning of "essential for the conservation of the species." The opinion examines an irrelevant question in arguing that there is no "temporal requirement" in the text of the Endangered Species Act. For example, the opinion states that the Service is not required "to know when a protected species will be conserved as a result of a designation."
The majority opinion rejects the logical limits of the word "essential" in concluding that requiring either actual use for conservation or a reasonable probability of use for conservation to satisfy the "essential for the conservation of the species" requirement in the statute would be reliant on the subjective intentions of landowners.
The majority opinion's interpretation of the Endangered Species Act is illogical, inconsistent, and depends entirely on adding words to the Act that are not there. Those words are "a critical feature."
Apparently recognizing that unless cabined in some way, the majority opinion's holding would give the Service unfettered discretion to designate land as "critical habitat" so long as scientists agree that uninhabitable land can be transformed into habitat, the majority opinion asserts that at least one "physical or biological feature... essential to the conservation of the species"
This re-writes the Endangered Species Act. It permits the Service to designate an area as "critical habitat" if it has "a critical feature" even though the area is uninhabitable and does not play a supporting role to an area that is habitat. Neither the words "a critical feature" nor such a concept appear in the Act. The touchstone chosen by Congress was "essential." The existence of a single, even if rare, physical characteristic does not render an area "essential" when the area cannot support the species because of the lack of other necessary physical characteristics.
The majority opinion's reasoning also suffers from internal inconsistency. The
I have difficulty with this reasoning. There is undeniably a textual difference in the Endangered Species Act between the sections dealing with an area occupied by
The majority opinion strenuously denies that its holding allows the Service to "designate any land as critical habitat whenever it contains a single one of the `physical or biological features' essential to the conservation of the species at issue."
The Service's construction of the Endangered Species Act is not entitled to any deference because it goes beyond what the meaning of "essential" can encompass. The Service's construction of the Act is impermissible,
The majority opinion quotes a Supreme Court decision, which says: "[w]hen examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential."
The fact that scientific evidence was a part of the proceedings leading to the Final Rule
The phrase "essential for the conservation of the species" requires more than a theoretical possibility that an area designated as "critical habitat" will be transformed such that its physical characteristics are essential to the conservation of the species. There is no evidence that it is probable that Unit 1 will be physically modified in the manner that the scientists uniformly agree would be necessary to sustain a dusky gopher frog population. The conclusion by the Service that Unit 1 is "essential for the conservation of the species" is therefore not supported by substantial evidence, and the designation of Unit 1 as "critical habitat" should be vacated under the APA.
The Service recognized in the Final Rule that under the Endangered Species Act and regulations implementing it, the Service is "required to identify the physical or biological features essential to the conservation of the dusky gopher frog in areas occupied at the time of listing, focusing on the features' primary constituent elements."
The other eleven units designated in the Final Rule had all three constituent elements.
The Service also identified the alterations and special management that would be required within the areas designated as critical habit, including Unit 1, to sustain a dusky gopher frog population.
The Service described three different scenarios to assess the potential economic impact of the Final Rule.
In the Service's second scenario, the Service assumes that development is sought by the owners,
Under Scenario 3, the Service assumes that the owners desire to develop Unit 1, section 7 consultation occurs, but no development is permitted on Unit 1 by the Government "due to the importance of the unit in the conservation and recovery of the species.
Scenario 3 shows, in the starkest of terms, why the Service's position that Unit 1 is "essential for the conservation of the species" is illogical on its face. Even if the Government does not allow any development on Unit 1 because of the existence of the ephemeral ponds, the Government is aware that Unit 1 cannot be used for the conservation of the dusky gopher frog because someone or some entity would have to significantly modify Unit 1 to make it suitable for frog habitat. Unsuitable habitat is not essential for the conservation of the species.
* * *
I would vacate the Final Rule's designation of Unit 1 as critical habitat, and I therefore dissent.
Next, the congressional findings, legislative history, and statutory provisions indicate that the regulated activity has an effect on interstate commerce. See 16 U.S.C. § 1531(a)(1) ("The Congress finds and declares that ... various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation ...."); id. § 1533(a)(1)(A)-(B) (acknowledging "the present or threatened destruction, modification, or curtailment of [a species's] habitat or its range" and the "overutilization [of species] for commercial ... purposes" as factors leading to species endangerment); Tenn. Valley Auth., 437 U.S. at 177-78, 98 S.Ct. 2279 (summarizing the legislative history of the ESA); Gibbs, 214 F.3d at 495 (discussing the legislative history of the ESA and the possibility of renewing a commercial market in a species once it is no longer endangered or threatened (citing S. Rep. No. 91-526, at 3 (1969))); see also San Luis & Delta-Mendota Water Auth., 638 F.3d at 1176.
Finally, the link between critical-habitat designation and its effect on interstate commerce is not too attenuated. The ESA is economic in nature, and Congress has made critical-habitat designation a mandatory component of the regime. See 16 U.S.C. § 1533(a)(3)(A)(i) (stating that the Service "shall ... designate any habitat of [an endangered] species which is then considered to be critical habitat" (emphasis added)). Moreover, as this case highlights, any future regulation of Unit 1 or other critical habitat would occur if the Landowners' commercial development plans triggered Section 7 consultation. Thus, the link to interstate commerce is not too attenuated for purposes of Commerce Clause analysis. See Morrison, 529 U.S. at 611, 120 S.Ct. 1740 (explaining that the statutes challenged in Lopez and Morrison fell outside Congress's Commerce Clause authority because "neither the actors nor their conduct ha[d] a commercial character, and neither the purposes nor the design of the statute ha[d] an evident commercial nexus" (citation and internal quotation marks omitted)). For these additional reasons, the application of the ESA's critical-habitat provision is constitutional as applied to the dusky gopher frog.
Special management considerations or protection are required within critical habitat areas to address the threats identified above. Management activities that could ameliorate these threats include (but are not limited to): (1) Maintaining critical habitat areas as forested pine habitat (preferably longleaf pine); (2) conducting forestry management using prescribed burning, avoiding the use of beds when planting trees, and reducing planting densities to create or maintain an open canopied forest with abundant herbaceous ground cover; (3) maintaining forest underground structure such as gopher tortoise burrows, small mammal burrows, and stump holes; (4) and protecting ephemeral wetland breeding sites from chemical and physical changes to the site that could occur by presence or construction of ditches or roads.
Id. at 35,132.
Under scenario 1, development occurring in Unit 1 avoids impacts to jurisdictional wetlands and as such, there is no Federal nexus (no Federal permit is required) triggering section 7 consultation regarding dusky gopher frog critical habitat. Absent consultation, no conservation measures are implemented for the species, and critical habitat designation of Unit 1 does not result in any incremental economic impact.
According to scenarios 2 and 3, the vast majority of the incremental impacts would stem from the lost development value of land in Unit 1. Under scenarios 2 and 3, less than one percent of the incremental impacts stem from the administrative costs of future section 7 consultations. Under scenario 2, the analysis assumes the proposed development of Unit 1 requires a Section 404 permit from the Corps due to the presence of jurisdictional wetlands. The development would therefore be subject to section 7 consultation considering critical habitat for the dusky gopher frog. This scenario further assumes that the Service works with the landowner to establish conservation areas for the dusky gopher frog within the unit. The Service anticipates that approximately 40 percent of the unit may be developed and 60 percent is managed for dusky gopher frog conservation and recovery. According to this scenario, present value incremental impacts of critical habitat designation due to the lost option for developing 60 percent of Unit 1 lands are $20.4 million. Total present value incremental impacts of critical habitat designation across all units are therefore $20.5 million ($1.93 million in annualized impacts), applying a 7 percent discount rate.
Scenario 3 again assumes that the proposed development of Unit 1 requires a Section 404 permit and therefore is subject to section 7 consultation. This scenario further assumes that, due to the importance of the unit in the conservation and recovery of the species, the Service recommends that no development occur within the unit. According to this scenario, present value impacts of the lost option for development in 100 percent of the unit are $33.9 million. Total present value incremental impacts of critical habitat designation across all units are therefore $34.0 million ($3.21 million in annualized impacts), applying a 7 percent discount rate.