But Judge Douglas Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit, who was part of the three-judge panel that decided the case, lambasted the government's theory in an opinion issued Friday.
“The Service’s legal reasoning was not just wrong; it was egregiously wrong. The Service’s argument rested entirely upon a half-sentence in the legislative history. This ‘approach is a relic from a bygone era of statutory construction,'” Ginsburg said.
“Under the Service’s approach, legislative history may supply duties that, as the Service now concedes, are not found in the enacted law. As the Supreme Court recently said, ‘We cannot approve such a casual disregard of the rules of statutory interpretation.’ The reason is obvious; as any high school Civics student should know, legislators vote on and the president signs bills, not their legislative history,” he continued.
Judge Ginsburg also seemed to call out the agency for historical hypocrisy in its rulemaking. “Only a few years ago, the Service, revisiting its interpretive rules, agreed with commenters that 'nothing' in the ESA required it to use ‘a “worst-case scenario” or make unduly conservative modeling assumptions,’ and rejected comments arguing it should give the benefit of the doubt to a species by evaluating ‘effects or activities that were possible even if not likely.'” he said.