One issue I have been thinking a lot about recently, particularly in light of the Supreme Court’s denial of cert in The New 49′ers v. Karuk Tribe of California, is the scope of the duty of federal agencies to consult, under Section 7 of the Endangered Species Act, over the impacts of their “discretionary” actions on protected species. Section 7 requires federal agencies to consult with the Fish and Wildlife Service (or the National Marine Fisheries Service, depending on the species) to ensure that their actions do not jeopardize the continued existence of any listed species or adversely modify its critical habitat. The Services have interpreted Section 7 to apply to “all actions in which there is discretionary Federal involvement or control,” and the Supreme Court, in National Association of Home Builders v. Defenders of Wildlife, confirmed that Section 7 can reasonably be interpreted to apply only to discretionary federal action.
But what is “discretion”? In my view, too many courts misinterpret the concept of “discretion” to be synonymous with “judgment.” E.g., a court will defer to an agency’s resolution of a difficult scientific or technological matter because the agency has “discretion” to decide the matter. In Karuk Tribe, both the en banc majority and dissent agreed that the Forest Service’s determination of whether to require a plan of operations for mining after having received a “notice of intent” to mine is a discretionary decision. But the reality is that this decision, like so many other putative “discretionary” decisions, is simply not.
Under the Forest Service’s regulations, a notice of intent is required of any miner whose proposed activities “might cause a significant disturbance of surface resources.” A more detailed “plan of operations” is required of a miner if the district ranger determines that his mining “will likely cause a significant disturbance of surface resources.” The Ninth Circuit concluded that these provisions give the Service “discretion” to determine whether a notice of intent or plan of operations is required, presumably because the determination of likelihood of significant disturbance of surface resources is not immediately obvious.
Nevertheless, the Ninth Circuit is wrong, and its error lies in confounding discretion with judgment. Undoubtedly, the more difficult a scientific or technical question is (perhaps like estimating a proposed mine’s impacts), the more likely that two otherwise qualified professionals will produce different answers. But that fact does not mean that the decision-making process is discretionary; it simply means that the process’s complexity makes it more likely that outcomes will be determined based on judgment calls. A judgment call, however, is distinct from an exercise of discretion. A court’s deferring to an agency’s judgment call means that the court believes that the agency is better placed by reason of expertise and experience to reach the correct result. But when a court defers to an agency’s exercise of discretion, something different occurs. In the latter case, the court is saying, “I recognize that you, the agency decision-maker, can legitimately choose more than one option based on the facts you have found; and, given the reasonableness/non-arbitrariness of your chosen option, I shall uphold it, even though I might have chosen a different option were I the one entrusted with this discretionary decision-making authority.”
Note, however, that this reasoning process is quite different from that which a court conducts when deferring to an agency’s judgment call. For in that case, the court defers not to a choice made among a range of acceptable options based on a given factual predicate, but instead defers to an agency’s determination of the factual predicate itself.
Now, oftentimes, a statute may grant an agency the discretion to choose among several options once a required factual predicate has been found. For example, Section 4(b)(2) of the Endangered Species Act says that the Services may exclude an area from critical habitat (that otherwise would qualify for critical habitat designation) if the benefits of its exclusion outweigh the benefits of its inclusion. In Section 4(b)(2), therefore, we have an excellent example of judgment giving rise to discretion. The Services have the discretion to exclude an area if, but only if, the factual predicate is present, i.e., the benefits of exclusion outweigh the benefits of inclusion. The predicate is a judgment call, to be sure, but it is no sense a discretionary action. Rather, the discretionary action comes after the factual predicate that gives rise to the discretionary power has been found.
This truth is by no means new, although it is often overlooked. In NAHB, the Supreme Court itself noted the distinction between judgment calls and authentic exercises of discretion. The issue in NAHB was whether Section 7 applied to EPA’s decision to transfer Clean Water Act permitting authority to the state of Arizona. The Clean Water Act says that EPA “shall” transfer such authority if EPA determines that nine statutory criteria have been satisfied. Arizona and its intervenor supporters argued that such permitting transfer is nondiscretionary, and therefore not subject to Section 7. One of the environmentalists’ arguments to the contrary was that “EPA’s decision to authorize a transfer is not entirely mechanical [because] it involves some exercise of judgment as to whether a State has met the criteria set forth in” the Clean Water Act. The Court rejected that argument, relying on the distinction between true discretion and deference-warranting judgment.
While the EPA may exercise some judgment in determining whether a State has demonstrated that it has the authority to carry out [the] statutory criteria, the statute clearly does not grant it the discretion to add another entirely separate prerequisite to that list.
This analysis can be applied comfortably to the Service’s mining regulations. Although a district ranger may have some “discretion,” i.e., judgment, in determining what constitutes a significant disturbance of surface resources, he has no discretion to require a plan of operations once he determines that there will be no significant disturbance. Thus, per NAHB, the district ranger lacks the kind of “discretion” necessary to trigger Section 7.