What’s The “Harm?" ESA Rulemaking after Loper Bright

In April, the Fish and Wildlife Service proposed to rescind a regulation defining the Endangered Species Act’s prohibition against “harm” to an endangered species to include destruction and modification of habitat. That regulation was previously upheld by the Supreme Court under Chevron in Sweet Home v. Babbitt, over a sharp dissent by Justice Scalia accusing the agency of imposing “unfairness to the point of financial ruin—not just upon the rich, but upon the simplest farmer who finds his land conscripted to national zoological use.” Citing Loper Bright’s overturning of Chevron, the Service proposes to rescind this regulation and adopt Justice Scalia’s opinion as the best reading of the statute. This would substantially curtail regulation of habitat, the loss of which is purportedly the leading threat to endangered species. Join this FedSoc Forum in discussing this proposal, its interpretation of the Endangered Species Act, and the effect of Loper Bright on agencies’ modification of regulations previously upheld under Chevron.




Featuring:
Karrigan Börk, Professor of Law, UC Davis School of Law; Senior Fellow, California Environmental Law and Policy Center; and Director, UC Davis Center for Watershed Sciences
Will Yeatman, Senior Legal Fellow, Pacific Legal Foundation
(Moderator) Jonathan Wood, Vice President of Law & Policy, Property and Environment Research Center

Episode Transcript

Speaker 1 (00:02):
Welcome to fedsoc Forums, a podcast of the Federal Society's
Practice groups. I'm Ny kas Merritt, Vice President and Director
of Practice.

Speaker 2 (00:08):
Groups at the Federal Society.

Speaker 1 (00:10):
For exclusive access to live recordings of fedsock form programs,
become a Federal Society member today at fedsoc dot org.

Speaker 3 (00:19):
Hello, and welcome to the fedsock Forum webinar call today
September third, twenty twenty five. We are delighted to host
a discussion entitled What's the harm ESA Rulemaking? After Loperbright.
My name is Matthew Satel, and I am Assistant Director
of Practice Groups at the Federalist Society. As always, please
note that all expressions of opinion are those of the

(00:40):
experts on today's call. As a Federalist Society takes no
position on particular legal or public policy issues. In the
interest of time, we'll keep the introductions brief, but if
you would like to know more about any of our panelists,
you can access their full bios at fedsock dot org.
We are fortunate to have with us as our panelists
Professor Kerrigan Burt and will Yateman, and we are grateful

(01:02):
to have Jonathan would as our moderator Jonathan is Vice
president of law and Policy at the Property and Environment
Research Center. As a last note throughout the panel, if
you have any questions, please submit them through the question
and answer future and zoom so that we will have
access to them when we get to that portion of
the webinar. We do ask the questions submitted there both

(01:23):
pertain to this discussion and with a question mark with that,
thank you for being with us today, Jonathan or is yours?

Speaker 4 (01:31):
Thank you, Matthew, and good Avenue and everyone.

Speaker 5 (01:33):
Today we'll be discussing a recent proposal by the Fish
and Wilife Service to rerecend in decades old regulation troping
the Endangered Species Act to prohibit destruction and modification of
species habitat. That might sound like a pretty narrow thing
that would only excite environmental nerds, but it's actually a
pretty big deal for a wide varie of industries and
land usee activities. The regulation of habitat modification. It's one

(01:55):
of the primary ways that the Essay has regulated the
country over the world last fifty years, and even beyond that,
the proposal may have implications far beyond land use and
species conservation because it also raises serious questions about how
low or bright affects agency authority to reconsider long standing
regulations that they believe do not reflect the best reading
of the statute. To debate those questions, we're fortunate to

(02:18):
have will Yateman, a senior legal fellow at the Pacific
Legal Foundation, and Kerrigan Burke, Professor lawt UC Davis and
a senior fellow at the count Worn Environment Law and
Policy Center. Our run of show today will be that
each of our speakers will have eight to ten minutes
for instructory remarks, followed by a moderated discussion in audience questions. So,
as Matthew said, please do add your questions as you
have them into the queue which I'll be monitoring, and

(02:40):
we'll sprinkle in once we get past the opening remarks.
With that, I believe we decided to start with will Thank.

Speaker 2 (02:48):
You so much, Jonathan. So I want to set the
table for about fifty years the implementation of the Endangered
Species Act, which I'm going to call ESA. It remained
largely static, and now all of a sudden, the ESA
is in a high state of flux, as evidenced by

(03:09):
this very webinar, which is among regulatory actions deregulatory actions
being taken by the second Trump administration on this statute.
So of half century static, currently in flux. What happened?
And in fact, there are three major political and legal

(03:30):
currents or changes that have led to our present moment
of ESA reform. In the first one, it was alluded
to by Jonathan it's the demise of Chevron deference. So
at every juncture of the ESA, you find a rule
propped up by Chevron. I'm an expert in these things,

(03:50):
and I don't think there's any other regulatory regime, domestic
regulatory regime that was more difference dependent. So of course,
the the harm definition rule it reflects this. It was upheld.
We all know that would be sweet home. It's predicated,
it's viability, it's predicated upon Chevron. So in a world

(04:14):
without Chevron, the ESA becomes legally vulnerable. All right, That's
the first trend. The second change is the advance the
structural force political force that is President Trump. So for
fifty years it was GOP orthodoxy to go to the
middle on environmental statutes. You didn't want to rock the boat,

(04:37):
you didn't want to alienate suburban housewives. That was the thinking.
So Ford, Reagan, hw W, they all fit this pattern. Well,
Trump has smashed the mold and perhaps I mean, I'll
speculate here, but that's the new norm in GOP and
GOP circles is to take these sorts of positions so

(04:59):
that the can force. And then the third one is
the rise of these abundance folks on the left. So
these are the people who have become sick of environmental
statutes holding up development, all the red tape and whatnot.
They bemoan the fact that these regimes make it impossible

(05:19):
to build things in America. So the rise of the
abundance folks, it's important politically insofar as it mutes opposition
to these sorts of reforms. So these three factors they
converge in our present moment, leading to multiple essay reforms,
including the blockbuster one we're talking about right now. So okay,

(05:39):
that's the context. Let's turn to the rule per se.
I want to discuss very briefly, echo or why Jonathan
is so spot on when he calls this rule a
big deal. It's not just that it would put an
end to the Rube Goldberg esque legal liability faced by

(06:02):
private landowners for possibly and accidentally in the future, harming
listed species, though that will occur. I mean, if this
rule becomes law of land or that would be likely
to occur, and that would be a welcome development. But
it's broader than that. An expansive definition of harm it

(06:24):
ripples throughout the statute. It's the lynchpin for the regime.
So an expansive definition of harm causes permittees are federal
permittees to face some more burdensome Section seven consultation process.
It results in private landowners being subject to more onerous
habitat modification plants the local level of government. So by

(06:49):
shrinking the meaning of take, the proposed repeal would cut
through ESA's copious red tape. I mean, it's not just
these frankly absurd lawsuits, and that's my humble opinion. It's
broader than that. It's the entire statue. This definition underguards it, Okay,
So that's why this is a big deal. Next, I

(07:11):
want to briefly discuss possible changes to the final rule,
and I think there are two possible changes that we
might see from the proposal to the final and the
first is to put a little more meat in the
bow in the proposal, the agencies deleted the definition of
harm wholesale. I think they might put the first sentence

(07:34):
back in, which says that harm means an act which
actually kills or injures a listed species. Multiple regular identities
have called for that. They say it or provides a
modicum of regulatory certainty here, and to be sure, they
all support this proposed decision. The second possible change I

(07:54):
think we might see between the proposed rule and the
final rule is that the agent or the agencies might
delete a few words in the definition of harass. So
I won't go into that in detail here. We might
do so in the Q and A, but that's something
to keep an eye on, all right. So I've discussed
the forces that led to the rule. I've discussed the

(08:16):
rule itself. I've discussed potential changes that we might see
to the final rule in this In my final bit
of this talk, I want to preemptively discuss some of
the criticisms of this rule, of this policy. And so
for starters to be worried about diminishing the ESA, you

(08:37):
have to first believe that the statute is working, and
it isn't. So here I'm leaning on an excellent study
that was done by Jonathan's colleague at Perk, Catherine Wright.
So according to her research, the agencies have listed under
the Endangered Species ACTSESA seventeen and thirty two species, so

(08:58):
a little more than seventy nine species. So decades ago,
the government estimated it modeled that it would buy now
have recovered, have fixed a delisted species due to an
ESA success three hundred of these species. Okay, the actual
number is fifty seven, all right, that's out of seventeen

(09:19):
hundred and thirty two, and that's after fifty years of work,
fifty years, billions of dollars scores of billions of dollars
worth of regulatory headaches. Fifty seven out of seventeen hundred
and thirty two, all right. This data allows us to
grade the government's performance under the ESA. So I'm using
one hundred point scale here. If we talk at absolute numbers,

(09:41):
the government scores A three out of one hundred, so
fifty seven out of seventeen thirty two. And if you
use the government's own yardstick for success, it's projected numbers
for successfully recovered species, then the government's scores is sixteen
out of one hundred. These are failing grade, no matter
how lenient the curve. So it's perhaps worth dwelling why

(10:05):
this would be. So. Why is the statute a demonstrable failure?
And I think we can point to two things. The
first would be its incentive structure. It's all about negative incentives.
It's all about command, control, punishment. This is sort of

(10:26):
dissonant with the way human beings work, and it leads
to indeed perverse incentives for landowners who often will destroy
make their property uninhabitable for potentially an endangerous species, rather
than incur regulatory liability or will even this is the
phrase for it, shoot, shovel and shut up. That is

(10:49):
to say, kill the species and their property, bury it
and tell no one about it so they don't incur
any regulatory liability. That's part and parcel of the statutes
negative incentives, And after fifty years it might be time
to try something new perhaps. And the second reason why
this statute has not been a success in my opinion,

(11:11):
and I think the numbers beare this out, is because
it's it's not a bunch of white coated bureaucrats who
are wholly disinterested and they're the ones calling the shots.
Just trying to preserve you know, important species. If so,
the regime wouldn't be so objectionable. It's like everything else

(11:32):
in DC. It's like every other agency politics, call of shots,
special interests, call of shops. It's no coincidence that so
many threatened and endangerous species occur next to oil and
gas developments because these are prioritized by the special interests
that you know, environmental special interest. So it's you know,

(11:53):
it's not some sterile, sanitized scientific playground. It's far from it.
It's politics as usual, and that's an immicul to the
bill's success. It gets caught in this flip flopping cycle
of policy that we've elast been been in DC for
about twenty years now. So that's my two cents. It's
sort of the past present future of what's going on

(12:15):
and why I welcome it and why I think it's
a big deal. Thank you, thanks Little Kerrie.

Speaker 6 (12:22):
Yeah great, thanks all for that really helpful introduction. I
think that France things up really nicely, and the I
think your chevron difference point you started with was so
key to this. There's a nice study from like twenty
seventeen a couple of professors looking at a Chevron deference
in the courts, and they said on step one, it's
only about forty percent of the time that agencies won,

(12:43):
but when you get to Chevron step two, agencies won
almost ninety four percent of the time. And because most
of the analyzes went to seven to Chevron step two,
agencies one seventy percent of the agencies one about eighty
percent of the time. And this is at circuit court level.
So we tended to know what the law was. It
tended to be whatever the agency's said the law was,

(13:06):
and that gave you some regulatory certainty. And of course
lover Bright says that we aren't going to do that
anymore anymore. Right, we're not going to defer to these agencies,
and instead we're going to find with the single best
meaning of the law is as written by Congress. And
I think one of the reasons we saw so much
difference in the ESA setting is that this is like

(13:26):
a very technical, very science heavy area. Ecosystems are complex
definitions of like what is a species? That's I thought
that would be super easy, and it turns out it's
really not. You know, I do a lot of phishing
and trying to figure out is this trout a species
or is it a subspecies that's also protected, or even
a distinct population segment which the Act protect is is

(13:48):
really tricky and really hard, and I have no idea
on the side of the stream, you know, So it's
very hard to figure these things out. And I think
that's why Chevron has historically played such a kind of
critical role here.

Speaker 7 (14:02):
Okay, I've been zooming out for a second.

Speaker 6 (14:03):
For the people who aren't, like, really environmental nerds on
this issue, I thought maybe i'd frame up kind of
what exactly this rule is trying to do.

Speaker 2 (14:11):
So.

Speaker 6 (14:12):
Section nine of the Endangered Species Act is where the
take prohibition, the kind of central protection for species comes
from in the Act, and it says, with respect to
any endangered species of fish or wildlife listed pursuant to
Section four, it is unlawful for any person subject to
the jurisdiction of the United States to take any such
species within the United States or the territorial see of

(14:33):
the US. Okay, so that's our take prohibition that we
talk about in the ESA. And then the Act provides
a definition for take right, and that definition for take
says take is to harass, harm pursue, hunt, shoot, wound, kill,
trap collect or to attempt to engage in any such conduct. Okay,

(14:54):
all the way back in nineteen seventy five, Secretary of
Interior promagated a regulation to finding what harm meant within
that take definition, and then that was amended a little
bit in nineteen eighty one without really changing the meeting
and that definition, and with that definition is i'm reading
this from the proposed regulatory change. The old definition was

(15:16):
defined as an act which actually kills or injured wildlife,
and then it went on to say in the definition,
such an act may include significant habitat modification or degradation
where it actually kills or injures wildlife by significantly impairing
essential behavioral patterns, including breeding, feeding, or sheltering. And as
we'll pointed out, this brings some actions by landowners that

(15:39):
you might not think would be a take within the
kind of broad take definition. Section nine itself does very
little work. We actually don't see a whole lot of
take prosecutions under the Act. But it sets up, as
we'll set a lot of the rest of the Act right,
It's what pushes private landowners into the Section ten permits
for incidental take, which results in the habitat conservation plans

(16:02):
and kind of the long and involved, sometimes permitting process.
So this thing itself doesn't do a whole lot that
government isn't out there like prosecuting people for take directly
very often occasionally, but really not very often.

Speaker 7 (16:14):
But it sets up a whole lot of the rest
of the Act.

Speaker 6 (16:18):
So where this gets kind of tricky, right, the administration's
proposed this definition, and my kind of short version of
a take on this is that the administration almost certainly
has the power to redefine what harm means. I don't
think one can argue that they don't. This would have
been true before lower Bright, definitely true under Chevron. The

(16:40):
barrier was maybe a little bit higher under Chevron and
the kind of associated stuff about changing a long standing
interpretation of the law or long standing regulation. But the
agency almost certainly has the power to do this. What's tricky, though,
is that they're trying to rely on lower Bright to
say that we have to do this, and there's no

(17:01):
discretion here. We don't need to do of neeper review,
no National Environmental Policy Act, environmental impact statement review. Because
there's no discretion, we're forced really to move on to
this new definition where we get rid of the harm
approach because of low forer Bright and I don't think
that's true. Loper Bright kind of went out of the

(17:22):
way to talk about this issue, and it says, we
don't call I'm quoting lover Bright here. We do not
call into question prior cases that relied on the Chevron framework.
The holding of those cases that specific agency actions are lawful,
including the Cleaner Act holding of Chevron itself, are still
subject to statutory starry decisis. Despite our change in interpretive methodology,

(17:42):
mere reliance on Chevron cannot constitute a special justification for
overruling a holding, because to say a precedent relied on
Chevron is at best just an argument the precedent was
wrongly decided. That's enough, not enough to justify overruling the
statutory president. Now when to be real clear, not saying
that that means administration can't do this. That seems to

(18:04):
be aimed at litigants who would sue to try and
have an old regulation overturned. And if somebody was suing
to try and get rid of this harm regulation, that
language would be directly on point. But the administration is
trying to rely on that language as a way to
kind of fast track this through and avoid doing that
NEPA analysis.

Speaker 7 (18:22):
I don't.

Speaker 6 (18:23):
I think that that's where the rule is really weak.
So I think that we'll see legal challenges focused on
that aspect of this rule making, and I think that
those have a fair chance at success. I think it's
hard to say that this is actually compelled by low
pro brider by the Endangered Species Act itself. We'll see
what happens, right, but I think the administration could do

(18:43):
this if it went through the kind of longer and
more involved rolemaking to justify it. Okay, So moving beyond
the question of power to do it and the way
that it's being done, I think the change is end
dramatically decrease protection for species, which I think is partially
the point, or maybe the points more to enable have

(19:04):
property owners to do what they want with their property
without the limitations of the Endangered Species Act. And we
can definitely will spend some time talking about success of
the Act. Ninety nine percent of species have been listed
by the Act, have had their slide arrested, and have
not gone extinct. So from my view, maybe you're talking
about ninety nine percent success rate, which is a pretty

(19:26):
high A.

Speaker 7 (19:27):
I'm not going to say it's.

Speaker 6 (19:28):
Great, Like there's a lot of things we should be
doing differently in terms of which species we decide to
protect and how we protect those species and really looking
for recovery. But we can talk about that later on
if we get to it in the questions. I don't
think though, that this is going to really cut through
the red tape, because there's still a fair amount of
habitat protection in the Act, especially under Section seven. So

(19:52):
any action, including private actions that need a government permit
still have to go through Section seven of the Act.
Section seven says that each federal agency shell ensure that
any action authorized, funded, or carried out by the agency
is not likely to jeopardize a continued existence of any
endangered species or threatened species, or result in the destruction

(20:13):
or adverse modification of the habitat of such species, where
habitat is defined there as critical habitat. So there's still
really strong habitat protection for any action that needs that
federal approval, federal funding, federal authorization, which means that an
awful lot of actions are still going to be covered.

(20:35):
There's Also, as we'll pointed out that harassed definition, harass
was also defined by the agencies, and it means an
intentional or negligent act or emission which creates the likelihood
of injury to wildlife by annoying it to such an
extent as to significantly disrupt normal behavioral patterns, which include,
but are not limited to, breeding, feeding, or sheltering. So

(20:55):
maybe you can't say that cutting down the trees that
would becker uses for habitat is harm after this change
in a rule that's probably harassing the woodpeckers. Still, it
certainly would annoy me if someone came in and cut
my house down, and that would probably prevent me from
sheltering in my house anymore, which means that harassed definition

(21:18):
is kind of a big media hook that's hanging out there.
Maybe it will get adjusted in the final rule, although
you'd probably want to get comment on that if it's
a whole new section of the Act. If I were
advising the government, i'd tell them they'd want to get
comment on that piece. And maybe I'll kind of close
with well, two things. One, habitat's really important for species.

(21:41):
If we look at how many species are in trouble.
The United States, eighty one percent of the species are
listed because of habitat loss or habitat degradation, and only
seventeen percent are threatened by direct killing people going out
and shooting or harvesting these things. And that was a
twenty seventeen study that found that. In nineteen ninety eight
study put it at eighty five percent habitat seventeen percent

(22:03):
due to direct killing. The other big one that shows
up a lot is pollution, and that pollution piece is
going to be hard to get out kind of depending on.

Speaker 7 (22:11):
What definition we end up with.

Speaker 6 (22:14):
So the last piece I want to flag, I think
I have time, Jonathan for one more, Okay, cool is
the question of like, what are we supposed to be thinking?

Speaker 7 (22:23):
Is actually a take?

Speaker 6 (22:24):
Then after this rule goes through, if we get rid
of the harm definition, okay, and so all we have
is take and then take as defined by the Act
to include the harm, the harass, all those other things.

Speaker 7 (22:39):
I don't really know what is and isn't take.

Speaker 6 (22:43):
The Circuit Court way back in Sweet Home said it
was a direct application of force, but that didn't really
work because we have this permits for kind of all
of these unintentional and indirect harms that can happen, and
so Justice Scalia and his cent argues for a definition
that says only actions directing it limited living animals. He

(23:06):
says those actions are conduct directly and intentionally against a
particular animal, and the majority there.

Speaker 7 (23:16):
Says, and I think this is right.

Speaker 6 (23:17):
Like, Okay, so if you had someone who drained a
pond that had a population endangered turtles living in it,
and they were doing that because they needed to get
I don't know, if some carp out of the pond
they didn't want any more, they were going to make
it nice bass habitat instead, that wouldn't be a take
because that wasn't aimed at the turtles.

Speaker 7 (23:35):
And I don't think that's right.

Speaker 6 (23:36):
Like the Act prescribes any like knowing killing of a
listed species, and that's the standard we get in the
Act itself, is knowing. And if that's the case, then
it can't just be things that are intentionally directed against
a particular animal or group of animals. And so it's
maybe a little bit broader than that. So like what

(23:57):
about draining a river that's salmon require when the salmon
aren't in it, you're not directly killing them. You're getting
rid of habitat, but when they come back, they aren't
gonna have a place to bread. Is that is that
take at that point? Or even the emissions piece, like
the Fifth Circuit has said that that not putting a
roof on oil stabilization tanks was a take because listed
species came and landed in those tanks and they died.

(24:18):
And if you know that's going to happen and you
let it keep happening, like that's not even the harm question.

Speaker 7 (24:24):
That's a broader take question.

Speaker 6 (24:25):
But we still don't exactly know what that that take
definition is if we're embracing the sweet home definition. So
I'll stop there, but I think that's one of the
big questions is the uncertainty this introduces.

Speaker 4 (24:37):
Thanks karenon will do you want to take a minute
to you for any response?

Speaker 2 (24:41):
Sure, the Yeah, you shoot. I agree with ninety percent
of what the professor said and I both thought it
was good stuff. I will a couple clarifications or slight disagreements.
Will note one the agency it was unclear whether or
not it's said it was in the proposal, whether or
not it was compelled by Low or Bright, and I

(25:02):
expect to the extent it could be interpreted to say
so that would be cleaned up in the final I
can't imagine they've got smart enough legal counsel where I
don't think they do that. The other one was agreeing
that it dramatically diminishes the act I wanted. This is
something I wanted to mention in the primary talk. But

(25:25):
forty seven states have state specific species protections, and that
perhaps makes sense given that sixty percent I think it
is of species listed under the ESA the federal essay
are intrastate non commercial species, which sort of makes you
wonder how Congress has regulatory authority over them. To begin with.

(25:48):
The final thing I wanted to note was, with respect
in the future, what is take one hundred percent of pree.
I mean, we've got ourselves quite a fluid situation here.
For the first time in fifty years, I see a spectrum.
I see it at one end of the spectrum of
spectrum of possibilities, one other spectrum of the sweet Home test.
Basically what it is, the existing one capacious at the

(26:10):
end of the end of the at the other end
of the spectrum, the one advanced by my organization, which
echoes Scalia's descent intentional deliberate direct action that injures kills
arms of species that's listed. There is this in between level,
which I think was what the on Bank Court of

(26:31):
the d C Circuit was getting at in the precursor
case to Sweet Home, the one that led to that
was reviewed in Sweet Home, and that is taking out
the intentional aspect to just any direct application of force
that results in the death. So you know, you build
a wind turbine in the path of where you know
boards are going to migrate, and you know it's absolutely

(26:54):
foreseeable that it's going to chop up a million birds,
you know, that would be that would comport with that
definition of horror, you know, which would also make sense
out of the Incident'll take provision. So those were the
sort of the three three points of having spots. Thanks well,
and I'll make a call for the audience. Please start

(27:16):
loading your questions into the Q and A and we'll
get to those as they pop in. But maybe Kary
gonna ask you a question and that you kind of
touched on, but might merit the more discussion from both
of you about Sweet Home as the.

Speaker 7 (27:29):
Elephant in the room.

Speaker 5 (27:30):
Should we think about Sweet Home as it's just a
Chevron decision, which is what the agency kind of does
just access of its two paragraphs, says Chevron and moves
on as opposed to discussing the statute and having strong
arguments either way on what the proper meaning is. And then,
like the correlady to that is, how should a court
confront that question that here post loop or bribe, an

(27:53):
agency says the Supreme Court is wrong?

Speaker 2 (27:57):
What is't?

Speaker 4 (27:57):
What's the court supposed to do with that sort of question?

Speaker 6 (28:02):
Yeah, I mean I do think that that sweet Home
did not say that this is the compelled reading of
the Act, that harm has to be that harm has
to be defined in this way, right, and that question
wasn't presented. I think that the majority there, and they
had a majority for this pushes back very hard on

(28:24):
Scalia's descent there, which is saying that harm has to
be defined as this directed, intentional thing aimed at a
particular individual of a protected species. So I do think
that there was a majority there, and you know, I would.
I don't know that it's still I don't think you're

(28:44):
probably still going to get a majority for that. I
have a hard time predicting with the Supreme Court is
going to do generally with anything. I think it's worth
thinking about, like the way the rule was set up,
which it really does seem to be designed to get
this into court as quickly as possible. You've essentially got
one administration to do this, depending on what happens after,

(29:09):
but you're only guaranteed one four year period to get
it in and I think the administration probably wants to
get it up to the Supreme Court if they if
they possibly can and get a definitive holding on what
harm is. And I assume they're hoping for the holding
that follows what skilly as we view was in Sweet Home,
which is I think why they're not proposing an alternate

(29:29):
definition kind of why we have this fast rule making,
why it happened so early, and the administration so you know,
to me, that kind of smart, smart lawyering for sure,
to try and get this clean, straightforward, get an announcement
from the courts as to what the rule is without
an agency definition to muck it up at all, and

(29:51):
that might really constrain how the Endangered Species Act is
enforced in the future and definitely would tie the hands
of future administrations.

Speaker 5 (30:02):
Well any thoughts about that, like maybe the put a
finer point on it, because I think Carry's right. This
is basically a gamble that the Supreme Court will take
it and we'll overturn sweet Home. But until that happens,
what's a district court and a survey court is supposed
to do in this kind of situation.

Speaker 2 (30:17):
Well, it's going to depend on the context. So judicial
review of the repeal. I don't think it's going to
raise any substantive statutory issues. I think it's going to
be an administrative procedure Acts seven and two or seven
and six two eight challenge arbitrary and capricious. Now, as
I think has already been discussed ESA citizen suit provision.

(30:38):
So this is going to be litigated in the district
courts via that mechanism. And what does a court say,
Oh geez, this is one of those real tough legal questions, because,
as your question suggests, you can read Sweete both ways.
I mean, there is more meat in the bone and
their saitutory analysis than perhaps the administrative station is let

(31:00):
on and their very brief proposal. But the court does say,
we're not going to decide because we're deferring on Chevron's
step two, we frond the statute to be ambiguous, so
we're not ultimately deciding the statutory question, so it certainly
will be argued both ways. A further complicating factor that
makes this just delicious legal question is that no one

(31:21):
has any idea what the heck statutory story decisis means
in the wake of Loberbright is what Professor Kerrigan just
pointed out. So we've got multiple layers of uncertainty in
addition to this being a terra incognita, as I suggested before,
because this is the first time an administration has ever
gone this way. So look, a lot of uncertainties, and

(31:43):
it's a fool erron to prognosticate how to turn out.
I'd imagine, like a lot of things seem to turn
out these days, that will get one sort of opinion
out of the northern district of California and another sort
of opinion out of the eastern District of Texas. But
that's I'm just estimating. But you know, it's fluid to
be determined.

Speaker 6 (32:05):
Hey, Jonathan, if I can just follow up on that
for a second. So Scalia and his descent has this
great example. He says that he's talking about the definition
of define or harm Rother and talks about defining this
way requires us to accept this is quoting the language
that a farmer who tills this field and causes erosion
that makes silt a real fine dust running into a

(32:27):
nearby river, which depletes oxygen and thereby impairs of breeding,
and a protected fish has taken or attempted to take
the fish. To take the strongest evidence to make us believe,
Congress is to find a term in a manner that
would do this right, that's his view, repugnant to the
ordinary meeting, And so like, what's a court supposed to
do if it gets that case? And I look at
that and I'm like, yeah, if you do this every

(32:48):
year and you're killing the fish in the river every year,
like that's take. You're killing fish is foreseeable. You're not
doing it on purpose, So it doesn't meet Scalia's definition.
But I think to me, it meets the definition. But
if we're taking scally at definition as a definition, then
maybe it doesn't anymore.

Speaker 7 (33:05):
And I think.

Speaker 6 (33:06):
That's like he pulls it out, It's like, look at
this crazy case, and I'm like, maybe I'm crazy then,
because that looks like harm or take to me. But
I don't know what a court's going to do with that.

Speaker 5 (33:19):
What I would say, there's lots of cases like that
out there, certainly in the citizens suit world. A related
question on Loper Bright that I've been puzzling over is Carien.
You mentioned there's not a lot of time for an
administration to do something this dramatic and get the Spreme
Court to overturn its prior precedent. So, assuming that doesn't happen,

(33:40):
could this be undone by a future administration? Like how
would you think about a future administration adopting what might
not be the best reading of the statue but is
consistent with a past Chevron precedent?

Speaker 7 (33:55):
Yeah, will do you want to try taking that one first?

Speaker 2 (33:58):
Oh? The so, of course, anything one administration can do,
another administration can undo or do you know vice, That's
the way these things normally ping pong and a lot
of issue areas, especially in the environment, labor policy, but
not the ESA until now it will be hard to

(34:18):
look again, the difference would be how it's for the
judicial review proceeds. So the what disrupt administration is trying
to do is to take any question of statutory interpretation
off the table for judicial review of what it's doing.
They only want review under e PA's the APA's very deferential,
arbitrary and compricious standard. Any administration that subsequently reimposed the

(34:43):
Harm rule as it exists now would then have to
defend that interpretation of the ESA during judicial review. Start
the d court, district court, and go to Cird Court
and perhaps ultimately the Supreme Court. So that is you know, look,
I then we might have more certainty in the district

(35:04):
or you know, in the federal courts. I mean that is,
you know, we may have even had the Supreme Court
way in by then due to one of these Susan suits.
So you know, it's it's dynamic. It is. My long
winded answer to cut to the point is certainly, yes,
a subsequent administration can can try to reimpose the Harm rule. However,

(35:25):
it's going to have to defend that Harm rule on
judicial review in a world without Chevron defference.

Speaker 6 (35:31):
Yeah, I decho the same, like I don't think I
think that the loss of Chevron doesn't change the way
that we the government's allowed to change regulations over time.
So I don't I don't see a difference there. I
think one of the things that we haven't talked about
so much that's going to be a core piece of
this is I think next to the next administration, even

(35:53):
without redoing the rule, can try and make a lot
of determinations that that kind of cloak these to say
about habitat and what harm is within the kind of
arbitrary and capricious standard, right, say, this is a factual
determination in this case, this is harm caused by this thing.
We're relying on the science here, and that means that

(36:13):
this is take and if you can like the more,
you can kind of show and I think every administration
is going to do this right So with Chevron Gohn,
then you want to shove stuff into a factual determination
or a policy determination where you are still going to
get difference. And those lines are not easy to draw,
like we pretend like they're They're easy to figure out,
but it gets real complicated, real quickly on those.

Speaker 2 (36:35):
John. I think it is wakes super quick in the
midst of an empirical examination of how the Department of
Justice is arguing administrative law cases in the wake of
Loper's demise. I mean that the DOJ they're strategic just
like any other lawyer. So what sort of airsats difference
mechanisms are they employing? And men seeing it time and

(36:56):
time again just what you said, We'll see this dueling
brief narrative where the petitioner is portraying the issue as
statutory construction clear and the agency is contravened, exceeded their
authority of the statute, and the government always framing it
as arbitrary and capricious. This is policy making discretion. Get

(37:16):
out of our hair courts. So that's definitely I mean,
I've witnessed or not witness but I've been reading about
that battle taking place in real time.

Speaker 5 (37:27):
Big A couple of policy questions I think underlie the
two stature interpretation perspectives here. One is probably the most
memorable line from jes Scalia's Descent and Sweet Home was
the idea that the interpretation quote imposes unfairness to the
point of financial ruin upon the simplest farmer who finds
his land conscripted to national zoological use.

Speaker 4 (37:48):
That was thirty years ago. Has that fear been born out?

Speaker 2 (37:52):
Like?

Speaker 5 (37:52):
I wonder what we think about that today and how
that kind of thinking might influence the court.

Speaker 7 (38:01):
That's for either of you.

Speaker 6 (38:04):
Yeah, I think one of the things that really marks
the EESA. Dave Owen, who's a scholar out here, has
written about this a little bit and he called it
the negotiative negotiable implementation of environmental law, where almost all
of the environmental law implementation is done via negotiation. And
so there's a lot of ways that both administration are

(38:30):
both both kind of size. Different administrations have softened the
EESA to try and avoid that financial ruin piece.

Speaker 2 (38:37):
Right.

Speaker 6 (38:37):
You see things like safe harbor agreements, you see the HCPs.
So there's few cases where you're told you just can't
do this, and like the real famous I guess you
can call the financial ruin cases, right, the big conflict
EESA fights over things like the spot at owl. Those

(38:59):
tend to be on on federal land and not so
much on private land.

Speaker 7 (39:02):
And I'm not saying that.

Speaker 6 (39:03):
There aren't there aren't horror stories about this, right, but
like we live in a society where we have restrictions
on what we can do with land, and we see
it in zoning, we see it in local land use decisions,
and we see it under that Clean Water Act, and
we see it an Endangered Species Act. So yeah, some
people it does hit a little bit harder, but I
think most of the time administrations have found a way

(39:26):
to soften that blow.

Speaker 7 (39:28):
And we've seen it from both sides.

Speaker 6 (39:29):
The claned administration during the kind of New Gingrich's efforts
to reform the ESA really push through a lot of
those changes. I know those have become core to how
the endangered species had to happens. Agencies like to say
yes in the end.

Speaker 5 (39:44):
Thanks Jennying, Will I want you touch on that, but
I do want to add a policy consideration for you
to talk about which character rates earlier, which is that
lots of habitat is the primary threat to most endangered
threatened species. Does the ESA even make sense if there's
not a general probition on habitat instruction?

Speaker 2 (40:01):
What do you mean it's like a purposive conceptual matter
or as a matter of statutory interpretation or are you saying.

Speaker 5 (40:10):
Yeah, I mean purpose or policy that like if Congress
was trying to prevent species extinction, how do we think
about the fact that this takes the biggest threat for
most species off the table for direct regulation.

Speaker 2 (40:22):
Well, I mean, sue, I guess said revert listeners or
direct listeners to our viewers. To that feel I had
about how unsuccessful the ESA has, then you know, to
worry about diminishing a law. The law is to be
effective as an initial matter. But regarding those such concerns,

(40:45):
the laws written the way the law is written and
should be interpreted the way it's written, without deference. And
if it isn't stringent enough, and I'm frankly I don't
know if I'm buying the notion that if it doesn't
cover speculative harms to species due to habitat modification, then

(41:06):
all of a sudden we've utterly netered the Act. I
don't buy into that. But if that were the case,
then lawmakers should act. They should amend the Act. They
should amend the Act as it was originally. That is
to say, you know, with the language that actually specifies
that habitat modification is included in take but they took

(41:28):
that language out. Now. Of course I'm a good originalist.
I give no credence to legislative history, but nonetheless, you
know it is there. I did want to touch upon
one thing, oh gully, it was the other question regarding
a little guy, and so the quote you had. That
was the rude Goldberg type litigation I was talking about.

(41:50):
It still happens as recently as twenty twenty four. The
Ninth Circuit in Cascadio or affirmed in Cascadia Wildlands be
Scott Timber. The court rest the planets were not required
to show or the government wasn't required to show an
actual injury beyond a significant impairment. So you know, that's
sort of dubious or that's what one of these terrible examples.

(42:12):
And then my real point here is in preparation for
this call, I reviewed the comments the docket, the regulatory
docket for the proposal, and farmer group at the former group.
I mean, here's the Georgia Farm Bureau. For decades, the
current definition of harm has imposed significant burdens on Georgia's farmers, ranchers,

(42:34):
and foresters Idaho, they basically say the same thing about ranchers,
and the upshot is I don't think they're lying. And
there's a pretty darn extensive record with a bunch of
examples on the comments docket from all these groups and
organizations that indicate how, yes, thirty years later, that's how

(42:57):
it did play out, and not just through the direct room.
Goldberg type litigation, as the professor said, was largely citizen suits,
not brought by the government. But in the way that
this definition reverberates throughout the Act makes it to other
components so much more owners, so much more stringent, so
much more full of red tape.

Speaker 6 (43:19):
I do think we'll just on the habitat is proxy
for tape piece. It's an interesting question, right where, like
in Section seven consultations, it's often the case that it's
hard to get good data on how many individuals of
a species are getting killed, and so the agency sometimes
will use habitat destruction as a proxy to evaluate how

(43:41):
many individuals of a species are getting killed. And I
don't think that's going to go away, Like, I think
that's still a legit method to say, well, we don't
know exactly how many are killing, but we know that
for every acre you remove, there tends to be two
of these critters in there. So if you remove more
than one hundred acres, we think you're probably killing more
than two hundred andividuals of the species. And that's not

(44:03):
a question of like how we're defining the harm and habitat.
I think that's a question of like how we're figuring
out if it take has happened or not. And I
think they're like squarely in arbitrary and capricious capricious review.
But that gets super nerdy and like really really deep,
diaby Esa, I do want to talk John if I

(44:23):
can't just respond to the questions about how the Act's working.
And I think this is the Endangered Species Act as
we have chosen to implement. It is aimed at preventing extinction.
Section seven says we can't make it worse for species.
Section nine says we can't take species the mechanisms to

(44:45):
actually go out and recover species. Like there's language in
there that says agencies are supposed to be doing that,
but that language has generally not been seen as enforceable
by the courts. Right, the purpose of you zoom out
look at the purpose of the Act as set out
by Congress as to recovery dangered species and the ecosystems
they depend on. They put habitat in there, But the
mechanisms that we've used and the way the funding has

(45:06):
been we haven't looked at recovering. We've just kind of
arrested the slide. I would argue that part of why
we haven't been able to do that, and part of
why we as we will point out at the very
beginning why so many of these listed species are around
oil and gas things, for example, is that there's never
been enough money to kind of do endangered species the
way that the law originally set it out set out

(45:29):
to do the endangered species thing, and I think that's
in part because the government maybe bit off more than
it realized it was fighting off when we passed the
Act in the first place. But the fact that there
isn't enough money to evaluate all the species, that it's
almost entirely driven by litigation at this point, means that
you're going to be saving the species that are most

(45:51):
in trouble. You're going to be trying to arrest slides
and keep those species from going extinct. You're gonna be
less focused on recovery for those speaking species. And because
the agencies are really listing these species for protection when
they're getting sued, you're going to be only listing the
species that are the ones that are really threatened by
habitat destruction or by other kind of elements that are

(46:13):
pushing them towards extinction. So it's not a surprise I
think that we haven't seen species recovered given how we.

Speaker 7 (46:19):
Implement the Act. And it's probably also not a.

Speaker 6 (46:21):
Surprise that those species that are most likely we listed
are those that people are suing to get listed because
the agencies aren't doing it on their own based on science.

Speaker 4 (46:32):
Thanks Jarring.

Speaker 5 (46:33):
Turn to one of the audience questions, which picks upon
this speculative harm will You've been calling it a Rube
Goldberg sort of situation, where the question is essentially, is
there a seven Counties like solution here where you tighten
the level of causation so you require foreseeability or approximate
causation to narrow take I don't know, but the question

(46:58):
not clear on whether it's as an alternative to this
or in addition to this. But I wonder if you
guys have any thoughts about that question in the wake
of seven County.

Speaker 2 (47:09):
Shoot the look, I'm for all for a Belton suspender's
approach when it comes to lessening this particular regulatory burden.
I don't know if I know, yes, I'll say this.
Some circuit courts have adopted a tighter requirement for approximate causation,

(47:29):
but other courts, and in particular the ninth has not.
So it is that is the solution proffered by the
questioner is an excellent one. It doesn't go as far
as I would like, you know, mixing the existing expansive
definition is I think the preferred policy. However, what the
questioner suggests is indeed the solution that a number of

(47:53):
circuit courts have adopted, and it does keep at bay
the worst of the Rube Goldberg type of lik that
I've been talking of, but again, other circuits don't. And
in the ninth you know, they've also got the Northern
District California, which is perhaps conducive to the more fanciful
of these sorts of suits.

Speaker 6 (48:18):
Yeah, I mean, I think for seeable seems to me
to be what the majority and Sweet Home was looking for.
And I don't have I don't have big issues with
with foreseeable as a limitation. And Connor pushed back on
that and the concurrence, and in the concurrence in Sweet
Home where the focus really was on like, there are

(48:38):
some of these causation links that get real long. I
like the goats in Hawaii that are eating the seedlings
of the trees that this this palila the bird needs
to survive. And Connor particularly thought that was that was wrong.
I thought that was not close enough to be uh
real harm under the Act.

Speaker 7 (49:00):
And like, I don't know.

Speaker 6 (49:01):
Maybe it's because so I did a PhD in ecology
and like study these long causation things, and I'm like,
that's that's pretty short. Like long is like otters not
eating enough of the little critters that eat the seaweed,
and so the seaweed dime back, which is why I
can't catch any bass off the coast in California anymore.
Like then you're getting pretty long. But generally we have

(49:22):
not seen success on those like super long causation chain
pieces right one step, maybe two steps, but like the
you know, there's a case about water right permitting by
a state and how much water then was flowing down
into a wetland that supported crabs that whooping cranes would eat, right,

(49:42):
and it was question of whether allowing people to take
water the state allowing people to take water was a
take under the Act, and the court said no, like
that's that's.

Speaker 7 (49:50):
Just too far removed.

Speaker 6 (49:51):
Right, So there's definitely cases where the courts have rained
these things in and I don't think we see a
ton of these really long causal chains.

Speaker 7 (50:00):
We need to have a study.

Speaker 6 (50:01):
Maybe will you and I can write this together, like
how long are our causal changes in these things? But
my sense is that they don't tend to be quite
as long.

Speaker 2 (50:11):
Thanks.

Speaker 5 (50:11):
So final audience question goes to the point that both
of you raise about how take and harm to play
out throughout the rest of the statutes. The question is
how will this recision affect implementation of critical habitat, especially
in areas that are not currently occupied?

Speaker 2 (50:31):
Yeah?

Speaker 6 (50:31):
Maybe, well, maybe I'm wrong, but I don't think it
affects the designation or critical habitat at all.

Speaker 7 (50:36):
This is just focused on the take piece.

Speaker 6 (50:39):
We can talk about the broader kind of reading of
the Act and what it means for this, but I
don't think that the critical habitat designation piece is going
to change in that part of section seven consultations I
don't think will change.

Speaker 2 (50:52):
Second, all right, all right.

Speaker 4 (50:58):
I'm sorry. All right, we've gone through the audience questions.

Speaker 5 (51:01):
We have only about eight minutes less, so maybe I'll
give each of you a chance for any final comments
or bringing topics that we missed and that are you know,
you burn in to get out there, and then we'll
wrap at.

Speaker 2 (51:13):
The half hour.

Speaker 6 (51:14):
I do think one of the pieces, kind of going
to the broader point of the Act is that when
we have this, you know, we have this list of
reasons for which a species can be listed, and one
of the reasons that the species can be listed is
like the very first one is a present of threat
and destruction, modification or detailment of its habitat or range.

(51:37):
And that's one of the comments I think that I've
heard of entrom folks, is it would be strange to
have an Act where thus recognized as the primary threat
to listed species or the very first or the reasons
the species can be listed and not have a mechanism
that addresses that at all within the take definition. There's
other parts of the Act and maybe you think that
that's the way it's supposed to be addressed. But to

(52:00):
say that we can't protect habitat at all through the
take definition seems like a kind of strained reading of
the Act.

Speaker 2 (52:11):
Well, the suit, let's see, there's nothing I haven't said.
You know, I definitely support this measure, support reforming the
ESA in general. All these negative incentives, I don't think
that's the way to go. I will note this is
sort of an aside I hope not too fanciful, But

(52:33):
this is another instance, this whole much the heart of
this discussion of the power, the talismanic power of a
good Scalia descent. Sort of we've seen this an issue
area after issue area, but me as a proponent of
ESA reform writing it in, I'm very lucky to have,
you know, a Scalia descent, the tremendous wind at one's bank,

(52:56):
wind it one's back in this current jurisprudential environment. So
I don't want to overstate it, but that's a really important,
perhaps unstated driving factor here. I mean, there's there's nothing
better for a policy in again today's yours prudential, legal
and political environment. Then if it's bolstered, indeed founded on

(53:19):
a really good Scalia descent, So sort of a testament
to his lasting effect, that of his descent and sweet
Home or babbit be sweet Home, and the effect it's
still having.

Speaker 7 (53:33):
Got sure I could right, it reads really nicely.

Speaker 6 (53:38):
Yeah, Hey, Jonathan, maybe one final point if you don't mind, So,
I don't know, at the risk of like papering things over,
I do I do want to think kind of broadly
about this question of like, is this marking a die
by the GOP away from the center on environmental issues?

Speaker 7 (53:57):
Like what's the future look like here?

Speaker 6 (54:00):
And one of the things that's that's constantly surprised me
about the Endangered Species Acts is the support for the act,
of support for protecting species and protecting and preventing extinction
is consistently strong, like on pulling, and even when you're
comparing it to development, like it does better than I would.
You know, I grew up in Kansas, in a kind
of little blue bubble city, Lawrence, Kansas, in a pretty

(54:22):
big red state, and my sense was always like, nobody
cares about this, But it's not true. Lots of people
care about species protection. Lots of people care about taking
care of their land. You talk to the farmers and
the farmers of the stewards of the land, right this
is this is so key to the way that they
see themselves, the way they see their relation to the environment.
And if you go back away is you go back
to like the first effective protection for species in the

(54:45):
United States, we brought it in from hunting groups. It
was hunters who decided to tax ourselves, right, Like we
tax ourselves on our guns and our AMMO in order
to fund a danger species protection. Fishermen did the same thing,
and this is really effective protection for species and conservation
so that we can keep using these species. I tell
my students and like trying to convince them, but nobody

(55:08):
loves a duck as much as somebody who wants to
go shoot a duck, Like if you hunt ducks, you
cannot do that if there aren't ducks to shoot. And
so I think as the dust kind of settles on
this over maybe the next twenty years, figuring out like
what environmental protection looks like, and how this reemerges on
the things that we do agree on, like how we

(55:29):
accomplish the goals that people want.

Speaker 5 (55:31):
Right.

Speaker 6 (55:31):
I think people want clean water. I think people want
abundant game species. And I think we want to protect
these really cool, really rare species too, And so I
think the question becomes like how do we do that
in a way that more people can get behind, because
I think it's I think it is possible to build
a really broad coalition around.

Speaker 5 (55:48):
This as a great point to end on is probably
a broader point well beyond the essay, like so many
environment issues are complex or how, not whether or why.
But with that I'll turn it back over to you, Matthew.

Speaker 2 (56:03):
Thank you yeah.

Speaker 3 (56:04):
On behalf of the Federal Society. I want to thank
our experts for the bit of their valuable time and
expertise today. I enjoyed listening to the conversation as well,
and I want to thank our audience for joining and participating.
We also welcome listener feedback by email at fedsock Forums
at fedsoc dot org. As always, keep an eye on
our website and your emails for announcements about upcoming virtual events.

(56:26):
Thank you all for joining us today. We are adjourned.

Speaker 1 (56:29):
Thank you for listening to this episode of fedsock Forums,
a podcast of the Federal Societies Practice Groups. For more
information about the Federal Society, the Practice Groups, and to
become a Federal Society member, please visit our website at
fedsoc dot org.