Endangered Species Act Section 4(b)(2) Exclusion Policy

The National Marine Fisheries Service (NMFS) and U.S. Fish and Wildlife Service (FWS) issued a policy stating that the Secretary in charge of excluding areas from critical habitat designation under the Endangered Species Act (ESA) is never mandated to exclude particular areas, no matter how large the benefits of exclusion or how negligible the benefits of inclusion. This policy abuses the discretion afforded to the agency by refusing to even consider that exclusion would be required where there are billions of dollars in benefits to exclusion compared to minimal benefits to conservation. The Supreme Court recently stated that it is neither rational nor appropriate to impose billions of dollars in costs in return for negligible environmental benefits, yet the agencies refuse to endorse this basic principle of administrative law. Even the Administrative Procedure Act (APA) says that just because officials are granted wide discretion does not mean they can do anything. Indeed, the APA explicitly provides for judicial review when agencies abuse their discretionary authority. This agency intransigence is especially dangerous since a number of courts have taken the position that the decision whether to exclude an area from critical habitat is immune from judicial oversight, contrary to the APA’s strong presumption in favor of judicial review of final agency action.