Endangered Species Protections Draw New Legal Focus Post-Chevron

Lawyers and analysts are bracing for legal battles over every aspect of the Endangered Species Act in a post-Chevron world, but the spirit and letter of the law could insulate endangered species protections from being gutted by future administrations.

Developers and other industry groups are expected to challenge nearly every federal agency interpretation of ambiguous terms in the ESA following the Supreme Court’s June 28 ruling in Loper Bright Enterprises v. Raimondo. Environmental attorneys are debating the possibility that imperiled species could end up winning those court battles, especially in a possible second Trump administration.

The Loper Bright decision scrapped the Chevron doctrine where courts deferred to reasonable agency interpretations of ambiguous statutes.

In a potential second Trump administration, “it’s certain that efforts to weaken the ESA through regulation will be challenged in court just as the Biden administration’s efforts to strengthen it have been,” said Melinda Taylor, senior lecturer at the University of Texas at Austin School of Law. “Without Chevron deference, those regulations will be more legally vulnerable than they were before.”

The Biden administration celebrated the ESA’s 50th anniversary at the end of 2023, and then in March finalized three rules that overhauled Trump-era ESA regulations. The rules govern the designation of critical habitat for endangered species and how governments should consult with the US Fish and Wildlife Service to reduce harm from development. The rules affect how builders, drillers, and other developers need to avoid harming imperiled wildlife and mitigate the impact of construction.

Each of those and other ESA regulations are ripe for challenge after Loper Bright, environmental lawyers say.

“I think there’s two camps of folks: Those that think the courts haven’t relied too heavily on Chevron deference in recent years anyway, and those that think this will open a flood of litigation” over definitions in the ESA, said Brooke Marcus, partner at Nossaman LLP in Austin.

The Fish and Wildlife Service declined to comment, saying only that it is still reviewing Loper Bright.

Litigation ‘Over Every Word’

The ESA was written at a time when Congress left more ambiguity in statutes, and regulations implementing the act’s provisions requiring government consultation and the designation of regulated habitat are especially vulnerable, Marcus said.

But J.B. Ruhl, co-director of the Energy, Environment and Land Use Program at Vanderbilt University Law School, said Loper Bright isn’t likely to bring on a cascade of litigation challenging ESA regulations that some seem to fear.

“There was already litigation over every word that the agencies tried to interpret in the Endangered Species Act, and so that’s nothing new,” Ruhl said. “It still remains to be seen how much the world’s really going to change” after Loper Bright.

Post-Chevron, courts may be more likely to entertain challenges to federal government interpretations of ESA terms such as “harm” and “critical habitat,” he said.

The ESA is a lean statute with many undefined or unclearly defined terms, requiring the US Fish and Wildlife Service to do a lot of work interpreting the law, which makes the agency’s rulemakings vulnerable to challenge, he said.

Fish and Wildlife Service decisions to list and de-list species are still entitled to deference by the courts even after Loper Bright because the ESA expressly delegates to the agency decisions to protect imperiled plants and animals, Taylor, of UT Austin, said.

But any new regulations addressing issues not expressly covered by the Endangered Species Act are ripe for court challenges—including regulations designed to weaken endangered species protections, she said.

In a second Trump administration, “it’s certain that efforts to weaken the ESA through regulation will be challenged in court just as the Biden Administration’s efforts to strengthen it have been,” Taylor said. “And it’s very possible that, without Chevron deference, those regulations will be more legally vulnerable than they were before.”

Tipping the Scales

The Supreme Court’s ruling could help stave off efforts by a possible second Trump administration to reduce endangered species protections, environmentalists say.

“Loper Bright will make it easier to challenge any regulations interpreting the ESA and other environmental statutes that do not represent the best reading of Congress’s purpose,” said Noah Greenwald, endangered species director for the Center for Biological Diversity, which prolifically files lawsuits aiming to require the federal government to protect declining species.

“This will apply equally to GOP efforts to weaken protections,” he said. “It may even tip the scales against efforts to weaken laws like the ESA since protecting species is what the ESA was intended to do.”

Ramona McGee, a senior attorney at the Southern Environmental Law Center, said she expects a flood of litigation in the wake of Loper Bright, but there is no reason to think that industry efforts to challenge existing endangered species protections will be successful.

The prospect of a second Trump administration in the post-Chevron era will herald a period of “extreme uncertainty” about regulations implementing ESA and other federal laws, said Pat Parenteau, emeritus law professor and former director of the Environmental Law Center at Vermont Law School.

Parenteau said that it’s “stunning” that after Supreme Court rulings casting aside established precedent, such as in Dobbs v. Jackson Women’s Health Organization, the justices seem to think their rulings settle major legal questions.

“They flat out don’t,” he said. “Giving 800 federal judges the power to decide what ambiguous statutory terms mean, you think there’s going to be unanimity through that? And consistency between the Ninth Circuit and the Fifth? What are you smoking?”

“The federal environmental regulatory regime is over—done,” he said. “I think we’re all groping in the dark for what the full ramifications of Loper really are.”