Page:Weyerhaeuser Company v. United States Fish and Wildlife Service, et al..pdf/2

2 benefits of designating Unit 1 against the economic impact, had used an unreasonable methodology for estimating economic impact, and had failed to consider several categories of costs. The District Court approved the Service’s methodology and declined to consider the challenge to the Service’s decision not to exclude Unit 1. The Fifth Circuit affirmed, rejecting the suggestion that the “critical habitat” definition contains any habitability requirement and concluding that the Service’s decision not to exclude Unit 1 was committed to agency discretion by law and was therefore unreviewable.

Held: Section 1533(b)(2) describes a unified process for weighing the impact of designating an area as critical habitat. The provision’s first sentence requires the Secretary to “tak[e] into consideration” economic and other impacts before designation, and the second sentence authorizes the Secretary to act on his consideration by providing that he
 * 1) An area is eligible for designation as critical habitat under §1533(a)(3)(A)(i) only if it is habitat for the species. That provision, the sole source of authority for critical-habit designations, states that when the Secretary lists a species as endangered he must also “designate any habitat of such species which is then considered to be critical habitat.” It does not authorize the Secretary to designate the area as critical habitat unless it is also habitat for the species. The definition allows the Secretary to identify a subset of habitat that is critical, but leaves the larger category of habitat undefined. The Service does not now dispute that critical habitat must be habitat, but argues that habitat can include areas that, like Unit 1, would require some degree of modification to support a sustainable population of a given species. Weyerhaeuser urges that habitat cannot include areas where the species could not currently survive. The Service, in turn, disputes the premise that the administrative record shows that the frog could not survive in Unit 1. The Court of Appeals, which had no occasion to interpret the term “habitat” in §1533(a)(3)(A)(i) or to assess the Service’s administrative findings regarding Unit 1, should address these questions in the first instance. Pp. 8–10.
 * 2) The Secretary’s decision not to exclude an area from critical habitat under §1533(b)(2) is subject to judicial review. The Administrative Procedure Act creates a “basic presumption of judicial review” of agency action. Abbott Laboratories v. Gardner, 387 U. S. 136, 140. The Service contends that the presumption is rebutted here because the action is “committed to agency discretion by law,” 5 U. S. C. §701(a)(2), because §1533(b)(2) is one of those rare provisions “drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion,” Lincoln v. Vigil, 508 U. S. 182, 191.