Trump Plan to Gut Habitat Protections Tests Loper Bright’s Reach

The Trump administration’s proposal to scrap how the federal government defines “harm” to endangered species presents a post-Chevron opportunity to see where courts will draw the line on upending longstanding statutory interpretations.

The Interior and Commerce departments last week proposed rescinding the current regulatory definition of “harm” under the takings clause of the Endangered Species Act that accounts for the indirect impact of climate or environmental destruction.

The move follows President Donald Trump‘s executive order directing agencies to review “potentially unlawful” regulations in light of recent US Supreme Court rulings, including Loper Bright Enterprises v. Raimondo. That decision eliminated the Chevron doctrine, under which courts deferred to agencies’ reasonable interpretations of ambiguous laws.

Attorneys and professors, however, see this proposal—and its expected legal challenges—as a chance for courts to check what they call an overly broad interpretation of the decision.

In Loper Bright, Chief Justice John Roberts “tried to downplay the extent to which that opinion would destabilize the law,” said Holly Doremus, a professor of environmental law at the University of California, Berkeley.

But the administration’s reliance on Loper Bright to argue the current harm definition under the ESA isn’t the “single, best meaning” of the statute could wipe regulatory oversight, attorneys and scholars say.

“The administration proposes to get rid of the definition so that energy companies, mining companies, loggers, and developers will have no need to get a permit before they destroy a critter’s habitat, even when the evidence is clear that the activity will harm the species,” said Melinda Taylor, a senior lecturer at the University of Texas at Austin.

Decades-Old Interpretation

The ESA prohibits the “take” of a threatened or endangered species, defined as “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect.”

Since the initial regulation was promulgated under the Reagan administration, both agencies and the courts have interpreted “harm” to include the unintentional results of ecosystem destruction, allowing the government and environmental groups to block logging, oil drilling, and wetland draining in endangered species’ critical habitats.

The ESA has long been a weapon used to block mining, road building, ranching, and energy projects instead of a tool to protect “truly at-risk species,” said Kathleen Sgamma, president of the Western Energy Alliance, a trade group for oil and gas producers operating on federal land.

“With a plain-language definition of harm, ESA could get back to protecting species rather than locking away lands that may or may not be habitat to stop projects that won’t actually harm species,” she said.

The Trump administration’s proposed change would limit the statute to prohibiting only intentional, direct killings of animals—an interpretation based on Justice Antonin Scalia’s dissent in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon 30 years ago.

That narrows the scope of what constitutes “take,” which will reduce energy companies’ liability for accidentally killing imperiled species as part of their operations, said Tyson Kade, a partner at Van Ness Feldman LLP.

If finalized, companies will have fewer requirements to reduce their impacts to those species, Kade and several colleagues wrote in a legal analysis published last week.

“Ultimately, the courts will likely be called on to further interpret the ESA statutory definition of ‘take’ and its component terms per Loper Bright, which will introduce some intervening regulatory uncertainty,” he said in an email.

‘Plain Misreading’

The administration declined to further review the rule change under the National Environmental Policy Act, so environmental groups could sue on those procedural grounds after the rule is finalized, said J.B. Ruhl, a professor at Vanderbilt University Law School.

Under NEPA, proposed regulation changes that could significantly alter human environments are required to undergo environmental assessments or more-stringent environmental impact statements. The Interior Department said it is reviewing categorical exclusion options for the proposed definition change, as environmental effects are too broad or speculative at this stage.

Environmental groups could challenge what several scholars have said is a plain misreading of the ESA’s language that directs agencies to protect habitats, Ruhl said.

“The implication of adopting Scalia’s view of what harm means is essentially turning the ESA into a hunting and trapping statute,” he said.

The law’s introductory paragraph says species “have been rendered extinct as a consequence of economic growth and development.” Congress has since elevated habitat destruction to become the first qualification to determine if a plant or animal is endangered, Taylor said.

Doremus added that the administration didn’t clarify how the current “harm” definition unduly burdens either agencies or land developers.

“They have not tried to make a case that this is harmful or problematic,” Doremus said of the prior understanding of the ESA’s prohibitions. “You would think if this was really a bad interpretation they could point to some problem it’s creating. But it has created no problems because it’s explicitly limited in that habitat modification is only covered if it actually kills or injures listed wildlife.”