AFPF Files Regulatory Comment Showcasing Loper Bright’s Role in Endangered Species Act

Americans for Prosperity Foundation filed a comment supporting the Administration’s effort to rescind the regulatory definition of “harm” under the Endangered Species Act and to instead rely on the statutory definition of “take” without the additional interpretive gloss. This rescission is an important example of the types of regulatory definitions that were previously upheld relying on Chevron deference but may not be defensible in the Loper Bright regime.

The comment argues:

Federal agencies must respect and follow the best reading their organic statutes. Agencies
are creatures of statute, which possess only those powers Congress chooses to confer upon them, subject to constitutional limits. They “literally ha[ve] no power to act” absent congressional authorization. Before Loper Bright, the Chevron doctrine allowed agencies to exercise discretionary authority under the guise of resolving statutory ambiguity “even when Congress has given them no power to do so.” In the wake of Loper Bright, federal regulations and other agency statutory interpretations that could only be defended under the Chevron regime as “permissible” interpretations of putatively ambiguous statutory provisions—but which depart from the statute’s single best meaning—cannot be grounded in an actual statutory delegation of discretion and thus fall outside of the agency’s statutory authority.

Link to the full rulemaking docket.