Loper, Stare Decisis, & the Endangered Species Act 

Two commenters from the NYU School of Law’s Institute for Policy Integrity have a piece on the Yale Notice & Comment blog challenging the Trump Administration’s invocation of Loper Bright as a nondiscretionary basis to rescind the existing regulatory definition of “harm” as it applies to the Endangered Species Act.

Jack Jones and Max Sarinsky write: 

The agencies seek to rescind the definitions of “harm” in the Endangered Species Act regulations, based on their conclusion that the current definitions “do not match the single, best reading of the statute,” per Loper Bright. But as the notice acknowledges, the Supreme Court upheld the current regulatory definitions in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon. And even though Loper Bright emphasized that cases like Sweet Home remain good law, the agencies claim that the rescission is “compelled” by law because they have concluded that the definitions do not reflect the best reading of the statute. The agencies then go further, asserting that the rescission is thus a “nondiscretionary action,” meaning they “do[] not have authority” to consider otherwise relevant policy or factual issues such as the repeal’s environmental effects.

But the agencies’ conclusion misunderstands Loper Bright’s discussion of statutory stare decisis. Because the current regulatory definitions were previously upheld in Sweet Home, they remain good law after Loper Bright. The agencies could choose to maintain them and are not legally compelled to rescind them even if, as the agencies claim, they are inconsistent with the statute’s best reading. Accordingly, the agencies’ decision to rescind the regulations is voluntary, not “nondiscretionary”—and the agencies therefore do need to rationally consider relevant policy and factual issues in order to satisfy the requirements of reasoned decisionmaking.

Americans for Prosperity Foundation filed a regulatory comment supporting the rescission. And Recasting Regulations has also featured the Jonathan Nash article on Chevron and stare decisis upon which Jones and Sarinsky rely.