Students Visit Supreme Court For Endangered Species Argument
On October 1st students from Professor Percival’s Environmental Law class made a field trip to the Supreme Court to watch the oral argument in an endangered species case. The argument, held on the first day of the Supreme Court’s 2018-19 Term, involved a challenge to the designation of critical habitat for the endangered dusky gopher frog.
The Weyerhaueser Corporation, lessees of the property, argues that it is illegal for the U.S. Fish and Wildlife Service to include private land that is not currently occupied by the endangered frog as part of its critical habitat. The Trump administration, representing the U.S. Fish and Wildlife Service, defended its decision to include the property within its designation of critical habitat.
Because the case was heard shortly before Justice Brett Kavanaugh’s confirmation, only eight Justices participated in the argument. Thus, unless the Court decides to hold the case over for reargument, there is a chance that the Court could split 4-4, which would summarily affirm the lower court decision upholding the habitat designation.
All Justices, except for Justice Clarence Thomas, asked questions during the argument. Their questions revealed that the Justices did not have a deep understanding of the consultation process mandated by Section 7 of the Endangered Species Act. Following the argument, the students joined Professor Percival at his home, nearby on Capitol Hill, to discuss the argument over lunch.
For most students it was their first opportunity to visit the Supreme Court to watch an oral argument. Professor Percival, who is a former clerk to a Supreme Court Justice, hosts student field trips to the Court each semester to watch oral arguments in environmental cases.