Counting the Cost: Weyerhaeuser and Judicial Deference to Agency Interpretations Under the Endangered Species Act

by Philip Williams and Elena Idell^*

Whatever the cost. Words that arouse in us what may be an impulse to charge blindly, recklessly even, with a kind of perverted courage to a species of immolation—the embarrassment of the very thing to which we as attorneys swore allegiance: the Constitution. But if we are to compare ourselves to soldiers, devoted to the defense of something—the air our children breathe, abundant wildlife, the preservation of our majestic forests and sweeping landscapes—then we must begin with our oaths to faithfully discharge our duties in support of our constituting instruments. And when the fight is over, or merely done for the day, we must be able to return with our honor intact, having fulfilled our oath. So, respectfully, no: it’s not whatever the cost.

This article is written in the context of the current political, social, and legal environment where republican institutions responsible for our progress as a nation— progress which has allowed us to climb Mr. Maslow’s hierarchy to the point where most of us can focus on

things other than food and shelter—are threatened in what can only be described as an existential crisis of who we are as a people. Surely, one of those of institutions is how we protect the environment we want our great-grandchildren to inherit—the wonder we want them to experience when they witness, as your authors have, Banner Peak casting its shadow over the headwaters of the San Joaquin River. And surely, another of those institutions is an independent judiciary that checks the arrogation by any of the other branches of the power vested in Article III to say what the law is.