Almost one year ago, we discussed the implications of the temporary rules and designations created by the U.S. Fish and Wildlife Service regarding the elevation of the Northern Long Eared Bat from threatened to endangered. For those readers who are unfamiliar with this issue, back in November 2022, the Northern Long Eared Bat was reclassified as an endangered species. Under the Endangered Species Act, the US Fish and Wildlife Service (U.S. FWS) would then be able to introduce new guidelines and guidance which are available to allow individuals and businesses to protect themselves from potentially violating the Endangered Species Act.
The Northern Long Eared Bat had a set of “interim voluntary” guidelines introduced back in late March of 2023, and they would remain in effect until the final guidelines were created and established around March of 2024. The U.S. FWS also makes significant use of a web-based tool, the Information and Planning Consultation tool (“IPaC”) to “streamline” the review of projects and apply the necessary determination keys in order to decide whether a given project is likely to have any impact on the NLEB or if further studies may be required.
March 31, 2024 came and went and no finalized guidelines or tools were released. At one point, the determination key for the NLEB was even disabled in the IPaC. A more recent effort to review the system shows a “new” determination key dealing with the Range-wide area of the NLEB as well as another species of bat, which appears to have been re-released July 22, 2024. It should be noted that this is the same key which was identified by the Service back in April of 2024 when it acknowledged that the final determination keys would be delayed into summer.
What is going on?
To put it simply, the game has remained the same but the rules are now subject to change. On June 28, 2024 the United States Supreme Court issued its decision in the matter of Loper Bright Enterprises, et al., v. Gina Raimondo, Secretary of Commerce, et al. The majority opinion in this case carries with it a phrase that may shake the foundation of rule-making and administrative agencies for years to come: “Chevron is overruled.” If you know an attorney who deals with any administrative agencies regularly, please check on them.
What does any of this mean? The U.S. Supreme Court is referring to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., et al. 467 U.S. 837 (1984). Chevron was a doctrine referred to as “Chevron deference” and would require courts to use a two step framework to interpret statutes administered by federal agencies, for example, how the Endangered Species Act is interpreted and administered in part by the U.S. Fish and Wildlife Service. Chevron would require a court to determine whether Congress has spoken clearly and directly to the precise question at issue, and if and only if, the congressional intent is clear, would the inquiry end. If, as is often the case, the statute was deemed to be silent or ambiguous with respect to the specific issue, the court would then, under Chevon, defer to the agency’s interpretation if it “is based on a permissible construction of the statute.” No more. Courts are no longer required to defer to the interpretation of a statute by the agency who implements that statute.
So what does this mean for the logging industry or the NLEB? Does it mean that the determinations and rules of the US Fish and Wildlife Service are null and void and no longer matter? No, emphatically no. Loper Bright does nothing to strike or dismantle any active rules or laws by any agency. What Loper Bright does is create a massive gap in the legislative interpretation for courts to interpret the propriety of actions by agencies. It is highly likely, that in the wake of Loper Bright, many agencies and services are taking a step back and evaluating whether these new rules are going to be able to pass muster based solely on the language of the underlying authorizing legislation.
Pertinent here, the Endangered Species Act is a fairly ambiguous and lean statute. Agencies like the USFWS have had to do a lot of work interpreting the language of the act, and that means that there are multiple opportunities for litigation challenging the scope and range of the rules that these agencies have implemented. While there are certain aspects that are unlikely to change, such as the USFWS’s authority to list and delist species would not be subject to challenge as it is expressly delegated under the act, but regulations regarding the protections and mechanism of regulation to meet the stated goal are now exposed and subject to challenge in a manner not seen in over forty years. Additionally, while the authority to list or de-list species is addressed, that is not to say that there couldn’t also be challenges against de-listing species, such as an interpretation of what the “range” of a species actually refers to. Is it the current range based upon population? Historic range? Potential range? In a perplexing and vexing twist, the possible floodgates for litigation flow both ways. If the statute does not specifically address the authority, it is now subject to court interpretation without deference to the interpretation of the administrative agency.
All of that is either confusing noise or music to your ears depending on your view of the world. For our purposes here, it simply means that while the scope and extent that the law may give an agency to express authority to make specific rules may be in question, the fact remains that there are rules in place. The administrative rules and regulations were not struck down and so it is important that they be challenged cautiously. The more conservative approach would be to treat the guidelines as though they were still the law. This means use the tools available through the Virginia Forestry and Game and Inland Fisheries, and U.S. Fish and Wildlife Service. Virginia has access to several strong tools to help you identify generally if your projects are going to be in trouble zones.
It is also important to remember that this current ambiguity cuts both ways. Groups that disagree with how certain agencies have handled themselves and their “duties” in the past may now see this as an opportunity to reassert the administrative state and push them to craft precedent in a manner that favors their designs. It is quite the conundrum when you consider that the power and authority of once mighty and in some cases menacing agencies are now subject to the decision making of a judge.
With this much uncertainty and unmapped forest ahead of us, we want to make sure you have every opportunity to protect your business and your employees from these ambiguities. If you want to discuss your project outlines and possible exposure to this or any other matters, please consider giving our offices a call so we can help you review and refine your practices, policies, and procedures. If you have any questions about our policy reviews or if you have specific questions related to this article, please contact John Stacy (jstacy@setlifflaw.com) at (804) 377-1263, or Steve Setliff (ssetliff@setlifflaw.com) at (804) 377-1261.
© 2024 Setliff Law, P.C.| View Our Disclaimer | Privacy Policy