The Trump administration’s decision to rescind the Endangered Species Act’s (ESA) regulatory definition of “harm” rests in part on its view that the Supreme Court’s 1995 Babbitt v. Sweet Home decision upheld the existing rule as a permissible interpretation of the ESA, rather than the only permissible interpretation. By relying on the Court’s post-Chevron jurisprudence to revisit that longstanding interpretation, the administration is setting up a potential legal battle over the scope of agency authority and endangered species protections.
The repeal is another example of the Trump administration using recent Supreme Court rulings to revisit earlier interpretations of laws and regulations, including the ESA, Bracewell’s Seth Barsky told Bloomberg Law.
“Sweet Home held only that the existing regulation is a permissible reading of the ESA, not the only possible such reading,” the administration said in its justification for the rollback. With the “harm” repeal, the administration is announcing its views about what’s permissible under the ESA, and it’s likely aiming those ideas directly at the Supreme Court, Barsky said.
