Earlier this week, my colleagues Adam Kahn and Kevin Chen posted about the proposed rule issued by the Fish and Wildlife Service and the National Marine Fisheries Service that would rescind the definition of “harm” under the Endangered Species Act to exclude adverse impacts on habitat. As Adam and Kevin noted, FWS and NMFS rely in part on the recent Supreme Court decision in Loper Bright Enterprises v. Raimondo, stating that the “single, best meaning” of the statute excludes such habitat impact. I write briefly as a follow-up just to discuss whether FWS and NMFS are right, and whether the new rule might not have a better chance of survival under the now discarded Chevron test.
First, a disclaimer – I have no real ability predict what the Supreme Court will do in any given case. Given its general anti-regulatory bent, it might well sustain the rule under any test, assuming that it is promulgated in its current form and is then challenged in court. That being said, I think that the Court might instead conclude that the elimination of habitat damage from the definition of harm is not the “single, best meaning” of the statutory language.
For one thing, over the more than 50-year life of the ESA, probably 99.8% (what we in the biz refer to as “false precision”) of all of FWS’s and NMFS’s efforts in implementing the ESA have been devoted to habitat protection. I know that, from a jurisprudential perspective, there is limited utility in relying on Congressional acquiescence, but the course of ESA implementation over that 50 years is difficult to ignore, particularly given Congress’s failure to take any steps to rectify the agencies’ “incorrect” interpretation of the ESA. Secondly, and speaking as a lawyer, and not a conservation biologist, I think it is fairly clear that an interpretation of the ESA that excludes habitat damage literally makes the statute pointless. There’s a reason why the agencies have spent almost all of their time focused on habitat protection since 1973 – if the habitats of endangered species are not protected, then there is no hope of saving endangered species. Would SCOTUS really support an interpretation of the word harm that not only goes against 50 years of interpretation by the implementing agencies, but also makes it impossible to achieve to purpose of the ESA?
On the other hand, getting the new rule affirmed under Chevron would seem to be relatively straightforward. As I have discussed previously, under Chevron, agencies were free to shift from one permissible interpretation of the statute to another permissible interpretation of the statute. Demonstrating that the new interpretation of harm is “permissible” is necessarily an easier case to make that demonstrating that it is the “single, best meaning.”
Alas, there’s no way to run an experiment and have SCOTUS review the rule under both Chevron and Loper Bright in order to see if the outcome would be different. Given the ideological predilections of the current Court – and notwithstanding the caveat I gave earlier – it is plausible to think that SCOTUS would affirm the new rule. On the other hand, it’s not a foregone conclusion and, if the liberals somehow pick up two votes and strike down the new rule, I would not be shocked if Justice’s Kagan’s hypothetical majority opinion were to include a rather pointed “I told you so.”
